Human Resource Blog

There is extreme liability here for the employer. If the employee loses her baby, or her health suffers due to working, then you as the employer could be liable for that. This could be a multi-million-dollar lawsuit.

You should immediately stop this employee from working (even in the middle of a shift if necessary) and not permit her to return to work until she can provide a note from her doctor, releasing her to perform her usual duties.

An employer cannot routinely require a doctors release for every pregnant employee, especially early in the pregnancy. Most women are completely healthy and able to perform their normal duties early in the pregnancy. However, the employer can and should require a fitness for duty release from any employee when the employer has reason to suspect the employee is not fit for duty.

You should never allow an employee to work against doctors orders. For one thing, if the employee is injured or suffers complications, those become work-related injuries and you must pay the medical expenses under workers comp. This employee does not have to take care of herself and her baby — there is no law that requires that. However, you should not take on the liability of allowing her to work without her doctors permission.

You may terminate this employee, but not because she threatens to file a workers comp claim. We agee with you that this supposed workplace injury is probably bogus. Most companies have policies that an employee can be terminated for not promptly reporting a workplace injury. Usually the injury must be reported to the supervisor on the same shift, or no later than the next shift. It is totally unaccpetable for an employee to wait 3 months to report an injury. That is why you will terminate this employee.  

It sounds like you have been more than fair with this worker, by offering her additional assignments that would increase her hours and allow her to keep her healthcare benefits. We agree that she may be inventing a workers comp claim to try to encourage you to allow her to keep her insurance.

Allow this employee to file a workers comp claim. Be sure you note on it that she did not report the injury for more than 3 months. We suspect that there are not any witnesses to this so-called injury — also note that on the form. Be sure to speak with your workers comp insurance carrier and let them know your suspicions. Meanwhile, terminate the employee for not reporting the inury promptly.

We will caution you against using the word *threaten* to describe filing a workers comp claim. Reporting a legitimate workplace injury is not an act of agression against the employer. Using such language makes you sound irrational. However, we agree with you that this employee is probably fabricating a workplace inury.  

The FMLA regulations specifically prevent the employees supervisor from contacting his doctor. If you have reason to believe that the doctors release might be a forgery, HR or a member of upper management can contact the doctor to make sure that the note is genuine. You should especially take this step if you believe the employee is a danger to himself or others.

Otherwise, you should treat this like any other performance problem. Sit down with the employee and have a conversation about the fact that he is not meeting the expectations that you have of someone in his job. Document this discussion, and any subsequent discussions. Eventually, if the employee cannot perform his job to the same standard that you would require of another employee, you may have to terminate him.

If the employee has a permanent disability, then he may request a reasonable accommodation under ADA. However, he must be able to perform the primary duties of his job, with the accommodation. And, lowering performance standards is not a reasonable accommodation. Lowering worker safety standards due to a disability is not fair to this employee or to his coworkers.

If the employee is working safely, and your concern is simply that he is overstressing himself or doing too much, if the doctors release is genuine, then you are covered.

Post a more specific question regarding the job and limitations, for a more detailed answer.  

Ah, but you did offer limited duty to this employee — and she refused it.

We can only speak in general terms because any employer with an open workers comp case needs to be talking to his or her workers comp insurance company, or to an attorney specializing in employment law.

When an employee is on light duty, also called limited duty, the employer is not required to invent a job, if none exists. Some occupations adapt well to limited duty, and others do not. If you have another job that the employee is qualified to do, that meets the restrictions of limited duty, then you can offer that job to the employee. If the job is at a lower rate, then the employee is paid the ususal wages for that job.

In many cases, an employee on workers comp who refuses to return to work on limited duty is no longer eligible for workers comp. You should contact your insurance carrier or an attorney, but it may be that if the employee refuses to return to work, she can be terminated.

Yup, we can. In most states, the number of toilets is dictated by OSHA, the federal Occupational Safety and Health Administration. This is covered under OSHA CFR 1910.141, on Sanitation.

For 50 female employees, you would require 3 toilets or *water closets* as OHSA so quaintly calls them. The 3 toilets could be in separate, lockable stalls in a single restroom.

For 50 male employees, you are also required to have 3 toilets or *water closets*. However, this requirement could be satisfied by having 1 urinal and 2 toilets. (2 urinals and 1 toilet would not be sufficient.) Again, the two toilets could be in a communal restroom inside lockable stalls.

Or, you could have 6 unisex toilets total, each in a separate lockable room.

For more info, scroll down on this page to Table J-1: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9790

Be aware that a number of states have state agencies that regulate worker safety. However, by law their standards must be at least as strict as the OSHA standards.