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Oct10

Employee hurt his back after first day on job

Hello! Some background: I own a food truck and currently the only employee. After spending a month interviewing and discussing the terms, I hired a manager who was a referral from another truck owner. We are in CA and as I didn’t previously have any employees, I don’t have any workers comp. We did exchange some emails but I never sent him an official offer letter because of some red flags after his first day of training. The incredibly physical work seemed overwhelming and he was much slower than I expected. But what was alarming was him informing me that he recently sued the owner of his previous job that he left and where he was very unhappy because they refused to pay his last weeks paycheck. When he found out that because he performed more than 50% of physical labor, he also sued for missed breaks and lunches, overtime, double time for holidays, etc ($13k over the years he was there). The second day we worked a double shift (lunch and dinner) and the next morning he txts me he started having back spasms and couldn’t move and that he might go to ER and tells me later that day that he won’t be able to work for an additional day. I proceeded to cancel the following shift because I didn’t want him on the truck with this back issue knowing we are on our feet all day long. He hadn’t seen a dr. I do not want him back. It was very obvious during his time on the truck the work was overwhelming and he is slightly larger in build and all the stepping on and off the truck, moving heavy items around constantly, all the squatting to reach into the fridge, etc was not easy on him. I’m afraid if he comes back he will a. Get hurt on the job b. Purposely get hurt on the job. I DO NOT want him to come back and wait for him to mess up even more because he will almost certainly get hurt before I can fire him. I would like him to at least get a dr’s note and I am hoping the dr will tell him he cannot perform this job. But what else can I do??

California, like most states, assumes all employees are at-will unless otherwise stated in an employment agreement. At-will employment means that either the employer or employee can terminate the relationship at any time with or without cause for any lawful reason. Employees may not be terminated based on sex, religion, race, age, national origin, sexual orientation, marital status, disability, or pregnancy. Additionally, employers may not terminate employees who assert their rights under state or federal labor laws, file a claim against the company for violating state or federal labor laws, or refuse to violate a law.

An employer with only one employee is not covered under federal or state leave laws or the Americans with Disabilities Act. Thus, you may consider termination under the at-will presumption as mentioned above. Focus on the employee’s poor performance and inability to do his job not any medical condition that he may have. Considering the employee’s history you may choose to approach the situation differently by not terminating him but requiring a return to work note from his Doctor as you suggest. If you go this route, be sure to explain to the employee that the Doctor’s note must specifically address his ability to perform the physical demands of the position. Be clear that he cannot return to work until he receives the appropriate medical clearance. If he cannot provide such documentation then termination may be warranted. If he does provide the appropriate documentation and you allow him to return to work, monitor his performance. If his work is substandard terminate him based on his poor performance.

Also, per the California Department of Industrial Relations, California employers are required by law to have workers’ compensation insurance, even if they have only one employee. If an employee gets hurt or sick because of work, employers are required to pay for workers’ compensation benefits. Workers’ comp insurance provides six basic benefits: medical care, temporary disability benefits, permanent disability benefits, supplemental job displacement benefits or vocational rehabilitation and death benefits.

Remember to document any conversations with the employee. This is important even for a small business in case the employee files a wrongful termination claim.

This entry was posted on Friday, October 10th, 2014 at 8:48 pm and is filed under
Human Resources Management, Termination.
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