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Ask Leslie: I Don't Think My Employee Will Be Able To Do The Job When He Returns, So Now What?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:


My employee, a 62-year-old man, was injured on the job nearly a year ago. He filed a worker's compensation claim and had surgery on his back. He has not been released to return to work, but in the meantime, I've hired an employee to replace him who is an excellent employee I don't want to lose. Do I have to take the injured one back?


Signed: Carla


Dear Carla:

Every state has its own worker's compensation laws, and state legislatures are constantly changing them, so you must check with your local counsel, preferably one that specializes in worker's compensation and disability law, including return-to-work issues. Several states, for example, give employees the right to reinstatement in their jobs within a certain period of time. Other states prohibit employers from firing employees who are still healing from work-related injuries. Seek guidance on your state's law so that you do not create retaliation liability.

In addition, there are at least two other laws to consider (as well as any state versions) when an employee returns to work. Under the Americans with Disabilities Act, should the employee have an impairment that qualifies as a "disability" under the ADA and need accommodation, employers must provide reasonable accommodations to allow the worker to perform the job. Reasonable accommodations are determined on a case-by-case basis, but additional leave or adjusted job duties can be considered appropriate. In addition, for employers with 50 or more employees, the federal Family and Medical Leave Act (FMLA) provides up to 12 weeks of job-protected, unpaid leave for those eligible employees with a "serious health condition." A "serious health condition" is not the same as a "disability" under the ADA.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

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Latest Numbers

Unemployment Rate

3.9% in Aug 2018

Payroll Employment

+201,000(p) in Aug 2018

Average Hourly Earnings

+$0.10(p) in Aug 2018

Employment Cost Index (ECI)

+0.6% in 2nd Qtr of 2018


+2.9% in 2nd Qtr of 2018

Source: Department of Labor

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