They say that a strong offense is the best defense. Well, that applies to workers’ compensation claim defenses, too.
As an employer, you need to have a strong administrative foundation upon which you will be able to establish affirmative defenses when you’re faced with a situation where you’ve got a workers’ compensation claim that may be invalid.
In a BLR webinar titled "Workers’ Comp: Horseplay, Intoxication, and Other Circumstances That Can Let You Off the Workers’ Comp Hook," attorneys Stuart J. Baron and Robert Vermes outlined the idea that the best defense to a workers’ compensation claim is a strong offense.
By that, they were simply saying that if you need to have a good business foundation in place before you’re in this situation. The components of a solid business foundation are:
- Policies and procedures
- Employee handbook
- Injury and illness prevention program
- Employee training
- Manager/supervisor training
With these in place you will be able to effectively meet your burden of proof on the affirmative defenses, when they are available to you.
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Policies and Procedures
This is the strong underpinning to all defenses. If you do not have quality policies and procedures in place then you’re going to get challenged. Include at a minimum:
- Legally compliant application for hire. What kind of information are you getting from the individual? Do you do background checks? Have you asked the right questions? Do you have enough good information about this individual that you may be able to use? Could you use the information on the application to help defend yourself?
- Legally compliant interview process. There have been recent changes to the Americans with Disabilities Act. You have to be very careful when you’re doing your interview about asking questions about intoxication, for example.
- Post-offer/pre-placement medical exam. Are you using these effectively to look for drug use? Do you have state or federal requirements, such as DOT requirements? Do you have quality policies and procedures in place if you have to enforce these things?
- Legally enforceable drug-screen program. Is your program compliance with your own statutes? Do you have the ability to force an individual to take a drug screening when there’s been an injury? What are the permissible levels of intoxication?
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Effective Job Descriptions/Job Function Analysis
In addition, having effective descriptions and job function analyses will help you knowing what the job is and the true requirements of the job.
These help you in three ways.
- They work well in the initial hiring process because you’re able to hand that to the individual and can tell them what the job is to avoid misunderstandings. This will help you filter out people who are not well suited for the job.
- They can be given to a doctor in the case of determining suitability to perform the job after an injury.
- Under the Americans with Disabilities Act, you can determine what restrictions might be needed for an individual with disabilities and whether this person can perform the essential functions of the job.
Tomorrow, we’ll address some of the affirmative defenses to workers’ compensation claims.