Managing Employee Injuries and Disability and Occupational Safety

affirmative defense of business necessity because it tended to prove also that the action was not necessary and that it was not directly linked to business realities. The court also added that the other evidence which must be considered would include the employer’s past practices in like situations, what constitutes reporting, what constitutes a reasonable excuse for not reporting, and the criteria for the decision whether and when to fire an employee who is “eligible” to be fired. The foregoing decisions place a burden on the employer to carefully document and justify personnel actions which it takes involving an industrially injured employee. While this burden may seem substantial, through careful personnel management, liability may be avoided. (A check list of factors to consider is included at the end of this section.) The courts have upheld an employer’s actions as non-discriminatory in various situations where the employer has shown that it reasonably relied upon competent medical evidence that an employee was unable to work, or that it would not have any vacancies available consistent with the employee’s limitations, or that work rules negotiated with the labor organization required a particular action. An employee sustained injuries to his back and the employer received a report from the employee’s physician indicating that he was precluded from doing heavy lifting which thereby prevented him from performing the customary duties of his job as an iron worker. The collective bargaining agreement in effect at that time provided that an employee could be terminated if on leave of absence for 12 months. The employee had also obtained a finding from the Rehabilitation Bureau that he was precluded from returning to his former employment. The Board concluded that the employer had established the business realities defense in this case. Although the employer may have had the discretion to keep the employee on leave of absence beyond the 12 months, the evidence also showed that the employer had a reasonable good faith basis for concluding that the employee could not return to work. The Board rejected the contention that the employer had some duty to keep his job open for him indefinitely. 55 In Tucker v. WCAB , 56 the employee was terminated for failing to phone in when he was going to be absent due to his industrial injury. A panel of the WCAB refused to apply the strict holding of Smith and concluded that the employer did not violate Section 132a. The Board noted that Tucker had previous disciplinary measures imposed on him for various rule infractions. Also, the employer had shown that it suffered substantial detriment by having to make expensive last- minute reassignments of other employees as a result of Tucker’s failure to call in. In another case, the WCAB dismissed an employee’s Section 132a claim when the employer had a reasonable good faith belief that the employee could not perform the duties of the position. 57 In that case, the employee had had six work-related injuries over a period of three years. The employee’s physician recommended that he could be returned to work with certain restrictions. The employer refused to return the employee to work. The WCAB held that the employer acted reasonably when it initially refused to allow Chiu to return to work without seeking further medical opinions in view of Chiu’s undisputed history of pathological back problems with periods of disabling symptoms caused by work injuries. The following cases illustrate application of these principles.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 66