Do you have an below-average employee on worker’s comp?  Here are your rights as an employer:

Workers Compensation Firing

Claimants may legally be terminated while a workers’ compensation claim is pending so long as employee is not otherwise protected by law. However, employers may not retaliate against an employee for filing a workers’ compensation claim.The employer must determine the following: Is the employee entitled to Family and Medical Leave Act (FMLA) protections? Is the employee covered under the Americans with Disabilities Act (ADA)? Is the employee being terminated for a discriminatory reasons? Is the employee being terminated for a reason contrary to public policy?

Possible Downside: Commissioners/judges are more likely to be sympathetic to an unemployed claimant, may result in higher disability awards as well as need for vocational rehabilitation.

Necessary documentation to terminate an employee on workers’ compensation: Employers must document reasons for termination. If a worker is terminated for poor performance, the employer must ensure that reasons are outlined in evaluations and/or that disciplinary process has been followed. If it’s a need-based termination, the employer must articulate business need behind termination (i.e., inadequate sales required staffing reduction).

HIPAA and Workers’ Compensation Claims

HIPAA is the Health Insurance Portability and Accountability Act. The HIPAA Privacy Rule protects the privacy of individually identifiable health information. HIPAA applies to health care providers, health care clearing houses, and group health plans. But HIPAA’s Privacy rule does not apply to workers’ compensation claims. When a worker files a workers’ compensation claim, the privilege of privacy on the matter has been waived in regard to that particular claim. Employers are free to contact the health care provider for information related to the workers’ compensation injury or illness. However, you might still have problems gaining information. Some doctors don’t understand HIPAA relative to Workers’ Compensation. Some are also scared of the consequences of a potential HIPAA violation and chose to err on the side of caution at all times. HIPAA does include some severe penalties for violations. Therefore, doctors may be unwilling to make the distinction on their own of what is or is not covered by HIPAA. As a consequence employers might still be asked to provide HIPAA authorizations before the doctor is willing to talk to the employer, even for a workers’ compensation claim.

Employer Worker’s Comp Rights
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