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I have an employee who has been out on worker's comp since June. We have had someone else doing his job in maintenance using a backhoe. We would prefer not to have him doing the same job, but have him do other work in the same department. We have a number of employees within this department that does not have a set job description, as they are all "maintenance employees who are required to perform all duties within the department.
However, if we no longer have him working the backhoe, his pay will be reduced by $1.00. Is this something we can do?
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| I believe you have to offer him a lateral position. Meaning the same pay.
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More information available under HR Topics / Safety / Workers Compensation:
If a work-related injury results in some form of long-term disability, you must consult with the treating physician (and possibly your company physician) to decide if and how the employee fits appropriately back into the organization, whether it is the same job he or she held before the injury, possibly with some accommodation or modification, or a different job entirely.
Best Practices
Consider carefully the employee’s ability to perform his or her prospective job duties.
Fully document your deliberations on reintegrating the employee back into the workplace, as well as all communication with employee, with relevant physicians, and with your insurance company.
View All Determining How the Employee Fits Back into the Organization
An employee who has been declared as having a Permanent and Stationary (P&S) condition may be capable of returning to his or her pre-injury job without limitation. You must consult with the treating physician and, in some cases, your company doctor to determine whether or not the employee is capable of performing the essential functions of the job with or without reasonable accommodations.
Your role is to make sure the medical authorities understand the essential functions of the job and the extent to which any necessary accommodations can reasonably be made. You need to involve your company doctor where privacy considerations require detailed consideration of the employee’s condition and recovery.
Possible Outcomes
One of four results arises from this process:
The employee returns to regular pre-injury duties without a change in duties or conditions of employment;
The employee returns to regular pre-injury duties as modified to accommodate his or her disability (a modified position);
The employee returns to a different position for which he or she is qualified within the limitations of the disability (an alternative position); or
The employee is found to be unable to return to a position within the company and is eligible for vocational rehabilitation benefits.
Modified Position
You may offer the employee a modified position, which is the employee’s former position modified to permit the employee to work within the work restrictions. It must:
Last at least 12 months; and
Pay the same wages and benefits as the employee’s former job.
Alternative Position
You may offer the employee an alternative position for which the injured employee is qualified within the work restrictions. It must:
Last at least 12 months;
Pay at least 85% of the wages and benefits of the employee’s former job; and
Be at the same location or within a reasonable commuting distance.
What You Should Do
Upon receiving notice that the employee has reached P&S status, do the following:
Immediately contact the employee or the treating physician to review any limitations that have been identified.
Identify other available jobs that the employee could perform within those limitations. Discuss these jobs with:
Your employee;
The treating physician;
Your company doctor; and
Your claims manager.
Document your efforts by keeping meeting notes, copies of job postings and job descriptions under consideration, and copies of written proposals and responses made along the way. This documentation helps you defend any claim that might be made for discrimination under Labor Code section 132(a) or disability discrimination under either the American with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA).
Finalize the type (modified or alternative) and details of the position that you offer the employee.
Coordinate with your insurer, who documents and makes the offer as required by law.
The employee has 30 days to accept or reject your offer. If the employee fails to respond within that period, or if he or she rejects the offer, you probably are not required to pay vocational rehabilitation benefits or reinstate the employee.
In California, a physical or mental impairment that limits one or more of the major life activities
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Forms & ChecklistsAgreement to Secure Payment of Workers' Compensation
Employee's Claim for Workers' Compensation Benefits
Personal Physician Designation Form
Personal Chiropractor or Acupuncturist Designation Form
Workers' Compensation Checklist
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How long do I have to hold a job for an employee who is out with a workers' comp injury?
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