A Simple Accident (or so it seems)
Issue #30
October 29, 2007
A supervisor who has worked for 4 years for an employer with 55 employees is walking to the loading dock and asks another employee for assistance. This employee has been on the job for four months. The supervisor needs some help unloading a new piece of equipment that has been on backorder for almost 6 weeks. As they are unloading it from the back of the truck, they lose their balance and both fall off the dock.
One sustains a back injury with a compressed disc. The other needs reconstructive surgery on his knee. It seems like a simple accident. After all, accidents do happen!
The employer notifies the Workers’ Compensation carrier, and asks if there is anything else he should do. The answers are that, after all, since the injuries were work-related, he has done what he is supposed to do.
A simple accident and simple answers but the ramifications can be significant. The employer can’t ask questions if he does not know what to ask. Here are some additional areas that should be considered:
FMLA
Which employee qualifies, when and why? What do you do about the other employee? How long is each employee really covered by the employee benefit plans? May the employer require light duty? If an employee accepts light duty, could they lose any benefits?
COBRA
In each situation, when is the employer required to offer COBRA? Depending on your contractual provisions, does the employer send out one notice with multiple election periods for each coverage or a separate notice for each coverage? How could the lack of sending notice to an injured employee potentially invalidate their coverage?
Employee Manual
Can the injured employee find all of their rights, responsibilities, entitlements, obligations as well as all employer policies regarding FMLA in the employee manual? (as required by 29CFR 825.301)
ADA
Have supervisors been trained to understand and make a reasonable accommodation if requested? Do they know to contact JAN? Are employees continued on COBRA if they still qualify?
EEOC
What happens if time off due to an accident is not designated as FMLA leave for an injured employee, however, time off for another employee for the birth of a child is designated as FMLA leave? If both employees need 4 weeks of additional leave later in the year, how will the difference in treatment be explained to the employee whose leave was treated as FMLA and therefore is not entitled to additional leave?
OSHA
Has the cause of the accident and not the fault been determined? Have any hazards which may have contributed to the incident been abated? Is there a focus on additional safety training to help eliminate the risk of the accident happening again? Is there adequate documentation?
Records Retention
Are there procedures in place to ensure that the correct records are kept for the appropriate time periods? Some examples are OSHA 300 logs, Medical, FMLA and COBRA as well as Exposure records from chemicals or blood borne pathogens. These records may need to be kept for 3, 5 or even 30 years.
Sexual Harassment/Discrimination
Do you charge employees on Worker’ Compensation leave premium while out? How do you explain charging premium to a pregnant woman on FMLA while not charging a male employee who is on leave due to an injury?
Contract Provisions
Do you leave the injured employees on your regular billing while on leave due to the injury? What do your insurance contracts state about whether or not these employees are actually insured? If an employer intentionally leaves someone on their bill and the company denies a claim, will this automatically be covered as a clerical error under Employee Benefits Liability Insurance?
Risk Transfer
The supervisor happens to be an officer in the company who opted out of Workers’ Compensation because of their high payroll. Does the insured really understand this potentially retained risk and do they verify with their health insurance carrier that the officers who opt out of Workers’ Compensation are covered for 24 hours a day on a yearly basis? Is this evaluated when changing health carriers? Are certificates for all contractors, including cleaning, lawn or maintenance people, obtained for Workers’ Compensation coverage?
Was this a simple accident, or a perfect nightmare? As you can see, there are far more questions to consider when an employee is injured than just reporting the claim to the Workers’ Compensation Carrier.
Free for the asking . . . .
Email me at ed@kempkey.com with your request and I will send you a COBRA Compliance Flow Chart that outlines the events and actions associated with COBRA compliance.