Workers’ compensation cost a lot, so you want to be sure you’re not wasting money. That means having answers to all the important questions. Today, we feature a brief Q & A on some critical issues.
In a BLR webinar entitled “Workers’ Comp 101: What HR Must Know,” attorney Susan Fahley Desmond offered some important answers to some very important questions about workers’ comp. Desmond is a shareholder with Watkins Ludlam Winter & Stennis and has been representing management in labor and employment law since 1985.
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Q. Can you terminate an employee on workers’ compensation?
A. In most states, workers’ compensation claimants may legally be terminated while a workers’ compensation claim is pending so long as employee is not otherwise protected by law. However, employers may not retaliate against an employee for filing a workers’ compensation claim in almost every state.
If state law permits termination of WC claimants, employer must determine the following:
- Is claimant an at-will employee or must employer demonstrate cause?
- Is the employee entitled to Family and Medical Leave Act (FMLA) protections?
- Is the employee covered under the Americans with Disabilities Act (ADA)?
- Is the employee being terminated for a discriminatory reason?
- Is the employee being terminated for a reason contrary to public policy?
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Negative consequences:
- Commissioners/judges are more likely to be sympathetic to an unemployed claimant.
- May result in higher disability awards as well as need for vocational rehabilitation.
Positive consequences:
- The employer may need to fill the position for production purposes.
- The employer may rid itself of a poor-performing employee.
Desmond also outlined the documentation an employer needs to terminate an employee on workers’ compensation:
- Employers must document reasons for termination.
- If a worker is terminated for poor performance, the employer must ensure that reasons are outlined in evaluations and/or that disciplinary process has been followed.
- If it’s a need-based termination, the employer must articulate business need behind termination (i.e., inadequate production required staffing change).
Q. What medical protocols must be followed In a workers’ compensation claim?
A. Desmond says that some states have medical protocols or guidelines for appropriate treatment for a worker who has been injured on the job. Often these are promulgated by the workers’ compensation commission in conjunction with medical experts. These protocols often set out to define and limit the type and duration of expected treatment for various body parts.
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However, these protocols are not absolute. The employer’s representative needs to work with doctors in individual cases where treatment beyond the scope of the protocols is deemed reasonable and necessary. Protocols are not absolute because every individual may have a slightly different situation, even with a similar injury.
The critical issue for an employer is to ask why. Ask why treatments are taking longer than usual, for example.
Q. How is HIPAA related to workers’ compensation claims?
A. HIPAA is the Health Insurance Portability and Accountability Act. The HIPAA Privacy Rule protects the privacy of individually identifiable health information. HIPAA applies to health care providers, health care clearing houses, and group health plans.
But HIPAA’s Privacy rule does not apply to workers’ compensation claims.
When a worker files a workers’ compensation claim, Desmond says, the privilege of privacy on the matter has been waived in regard to that particular claim. Employers are free to contact the health care provider for information related to the workers’ compensation injury or illness.
That said, you might still have problems gaining information.
According to Desmond, some doctors don’t understand HIPAA. Some are also scared of the consequences of a potential HIPAA violation and chose to err on the side of caution at all times, even if they understand.
HIPAA does include some severe penalties for violations, including imprisonment. Some doctors are unwilling to make the distinction on their own of what is or is not covered by HIPAA, and thus still require a HIPAA authorization before being willing to talk to the employer, even for a workers’ compensation claim.