The Mailbag.

AuthorDelogu, Nancy

Who judges the type of tasks that an employee returning from injury can physically handle?

Q A long-time, older employee has been out on workers' comp since August 2019 due to an injury. His doctor just released him to full duty. We're concerned about potential risks in bringing him back to work. Do we have to restore him to the same position, or can we legally offer him another job that won't be so physically challenging for him?

  1. You don't specify the reason you are worried about "potential risks" of returning an employee who has been released to full duty by his doctors. You do mention age. If the concern is that you would potentially be exposing an older worker--whom the CDC considers a "vulnerable worker"--to COVID, you might be vulnerable to accusations that you are discriminating based on age. The best approach would be to institute protective measures for all workers and offer any vulnerable workers other less risky assignments if they agree or have requested themselves.

    You may also face a potential ADA claim if you assign a returning worker to a position based on his "perceived disability" when, in fact, his doctors say he is fully released back to work.

    As to generally returning employees on workers' comp to another position, check with your workers' comp insurance carrier. Each state has slightly different rules.

    How do we save on exempt workers' salaries during a time of diminished production?

    Q We have salaried employees that will be working from home, but they cannot give us 40 hours' worth of production in a week. Can their salaries be docked? Should we make them contract employees during this period instead of keeping them as exempt salaried employees?--Judy, Texas

  2. No, you cannot dock the pay of salaried exempt workers simply because they work fewer than 40 hours during a given week. Exempt employees must be paid a fixed salary each pay period that is not reduced because of the quality or quantity of the work performed. If the exempt employee has performed some work during a week, you cannot make any salary deductions because of poor work performance, a weather closure or failure to work 40+ hours.

    I am not sure what you mean by suggesting that the workers become "contract" employees, as that is not really a specific worker classification. It is a mistake to treat employees as "independent contractors," because hiring a former employee as an independent contractor to perform the same work he performed as an employee is a...

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