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    Jaysix's Avatar
    Jaysix Posts: 1, Reputation: 1
    New Member

    Jun 29, 2016, 09:20 AM
    Can I force a leave of absence for back pain recovery? And related questions...
    I have an employee that has sporadically missed 2 weeks of work over the last 2 months claiming her back hurts. She thinks she hurt it here but never said anything at time of injury and no worker's comp claim was filed. She has not seen a doctor and is asking for a light duty position and refusing her normal responsibilities as a result of her proclaimed back pain.

    Can I force her to take a leave of absence and not return until she brings a doctors note clearing her for full work duty? If she tells the doctor it happened at work, can a worker's comp claim still be filed months after the possible injury?

    Any advice, suggestions, and/or opinions are greatly appreciated. And my business is in FL.

    smoothy's Avatar
    smoothy Posts: 25,495, Reputation: 2853
    Uber Member

    Jun 29, 2016, 10:19 AM
    Absent any actual doctors diagnosis, Don't give her any light duty position...

    There is a definite time lime for Filing a Workmans comp claim. I don't know if they vary State to state, but I would make inquiries for the state the Business is located as that's the one that applies. She can claim all she wants, if she never reported it when it happened, you can deny it happened at at the office.

    In fact most employers REQUIRE accidents to be reported immediately when they occur for this very reason.

    Even then, IF she files one, and IF it even gets underway, it has to go past a judge etc to prove merit, you have YOUR doctors verify, not hers exclusively, and it will still be years before anything ever comes of it, win or lose.

    You can require her to be at her full capacity in order to work... ADA law doesn't apply to temporary disabilities. You can require she take a leave and require her to present proof she has been to a doctor for treatment, and require a doctor to certify she is fit to work. ( Have seen my employer do this a number of times).

    If she is an AT-WILL employee... she could even be terminated for taking excessive time off. (My employer will require a doctors excuse after day 2 and refuse to allow you to return until you present one) And many will not allow you to take unpaid time off... ( after just a couple unpaid days where I work, you will be terminated, that's how I got my job).

    But you do need to follow any employment laws for the State the Business operates from as they may vary ( A city might also have additional laws).

    If she is a Union Employee it also becomes more difficult as contracts must be followed, If she is At-Will (meaning there is no employment contract between the Business and her) her inability to perform her duties is a legitimate reason for termination.
    joypulv's Avatar
    joypulv Posts: 21,593, Reputation: 2941
    current pert

    Jun 29, 2016, 05:08 PM
    Just say no. She hasn't done enough to show that she was injured at work, and the longer she puts it off, the harder it will be to claim. Countless back injuries are never connected to what started them. It could have been brewing for years.

    I assume that she isn't paid for the time off, or do you give a lot of sick time?

    You can fire her (she might possibly sue for comp though, even with a very weak case). Don't confuse this with someone with a disability, or a union contract. But I would tell her that she can wait for a less strenuous job to open up, but that it might be a demotion, with less pay.

    What heavy work did she do?

    If you are worried, have her followed on one of her days out sick, or just in general, with a dated camera. She might be hurting, she might not.
    Also check into her work history.

    You could call your WC carrier too. Back claims are almost always problematic.
    Fr_Chuck's Avatar
    Fr_Chuck Posts: 81,304, Reputation: 7692

    Jun 29, 2016, 06:15 PM
    You can not, and should not be giving her light duty. Light duty is only with a doctors letter. You open yourself up for lots of future issues. What if every employee, tomorrow, demanded light duty ?

    So put her back on full time work, if she claims injury happened at work, you, in most states can require that she see the doctor that is appointed on the workers comp list for your company. (varies by state)
    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977

    Jun 30, 2016, 09:33 AM
    Florida Statute 440.185 provides, in pertinent part, as follows: 
    "Notice of injury or death; reports; penalties for violations.(1) An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter unless:(a) The employer or the employer's agent had actual knowledge of the injury;

    (2) Within 7 days after actual knowledge of injury or death, the employer shall report such injury or death to its carrier, in a format prescribed by the department ...

    So you should notify your carrier that the employee claims she was injured at work. I'm not sure that you indeed have "actual knowledge", but refer it to the carrier and ask them how to proceed. Once a determination has been made that the injury was not work-related, and the employee has exhausted whatever appeal rights she may have, you can lay her off, if you want.

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