Managing Employee Injuries and Disability and Occupational Safety

 Care should be taken never to discuss with an employee any dissatisfaction with his filing of the claim, or with the fact of his injury. The employee’s supervisor should be counseled that any comments which concern the employee’s disability, his ability to work, and any pending legal proceedings, should be through legal counsel or senior management.  If the action which is being taken involves the application of a personnel rule, or a provision of an MOU, determine whether the rule has been applied consistently as to this employee and other employees. Consider also whether there has been a history of waiver of certain provisions of the MOU or personnel rules by the employer or the union. Applying a rule inconsistently as to an injured employee may give rise to an inference of discrimination. An inference of discrimination might also arise if the agency did not request a waiver from the union where there had been a prior history of granting a waiver.  Consider to what degree the interests of the employer in the efficient operation of public services are being impaired. If, for example, an employee’s industrial disability results in a long-term leave of absence, but his position may be easily filled on a temporary basis, this would be evidence that would undermine the business realities defense. On the other hand, if the employee’s absence is having a severe, detrimental impact on the organization, then replacement of the employee might be more supportable.  Confirm all communications in writing with the employee. If there are conferences with the employee, it is advisable that more than one member of management be present. Notes should be maintained, and a memorandum of the conference prepared.  Be conscious of the timing of any actions which are taken. For example, if you choose to take action against an industrially-injured employee the day after a WCAB hearing, or near the time that his workers’ compensation is being settled, this could be considered circumstantial evidence of discriminatory intent.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 68