Your employee incurs a slip-and-fall injury. What do you do? You might be thinking this is a trick question. Isn’t it what some would call a no-brainer? Give him/her a claim form, report the injury to your workers’ comp carrier and have the carrier-designated physician conduct a medical examination and see what’s to be done from there, right? Well, yes, that is all correct, but there’s more. There are also many things that you should NOT do. Those of you who read The EmpLAWyerologist regularly know that I am a fan of learning from others’ mistakes. Many if not most of my posts take that angle. In that regard, today’s won’t be different. Read on, and you’ll see..
(image from seriousaccidents.com)
This week the case we’re going to learn from is Wald v Benedictine Living Communities, d/b/a St. Rose Care Center. Here’s what went down:
Debra Wald was a cook at a long-term care center in LaMoure, North Dakota, where she worked more than 30 hours a week and earned $10.25 an hour, plus health care benefits and paid sick leave. Ms. Wald slipped and fell at work on March 3, 2011, and sustained injuries. She received medical treatment for the injuries and was also awarded partial temporary disability benefits from 2011 to 2015. So far, so good. Let’s pause here. Can you guess what else this employer should have done at the time of Ms. Wald’s injury? I’ll give you a hint: It’s a federal law that came into being under President Clinton. If your guess was notify Ms. Wald of her rights under FMLA, you are correct. Now, in the interest of complete candor and accuracy, this employer did get around to doing that — on May 11, 2011, more than 2 months after it should have done so.
If that were all, then this employer might have been able to work things out with the employee. Ms. Wald’s treating physician released her back to work in July 2011 without restrictions.Ms. Wald had testified that she would have been willing to go back to work with some accommodations (presumably before July? That’s not clear). There’s only one problem. On May 20, 2011 St. Rose fired Ms. Wald. That’s right. A whole 9 days after notifying Ms. Wald of her rights under FMLA it fired her, depriving her of the opportunity to exercise her FMLA rights. Ms. Wald would/should have had 15 calendar days to get a certification from her physician. That time limit had not even run when she was fired.
St. Rose was in violation of another federal law. Can you guess which one that is? If you guessed the ADA/ADAAA, you are (again) correct. Title I of the ADA requires reasonable accommodations for qualified individuals with disabilities. Now, it is possible that Ms. Wald’s injuries, while they may have caused impairment may not have been disabilities as defined under the ADA. With that said, this employer would have had an obligation under the ADA to evaluate any requests for accommodations as request for reasonable accommodations under the ADA. If her conditions were a disability under the ADA it would have had to engage in the interactive process and attempt in good faith to provide such accommodations. Based on the record it did not even try.
Not surprisingly, Ms. Wald sued. She was alleged FMLA retaliation, ADA discrimination as intentional and negligent infliction of emotional distress. Ms. Wald was awarded damages on the FMLA claims in the amount of $118,610.76, the amount she would have earned in wages from St. Rose during the intervening time had she not been fired. But then the jury found that she didn’t make efforts to mitigate those damages. It found that she could have earned the same amount working for someone else and so, in effect she received no damages. You see, even when we incur losses, we have to make efforts to mitigate that loss and we have to prove that we did so. Ms. Wald appealed and the North Dakota Supreme Court reversed the ruling and ordered a new trial. The Supreme Court said that the trial judge improperly instructed the jury. You see, St. Rose would have to have actually shown not only that Ms. Wald didn’t make efforts to mitigate her damages, but that she in fact had opportunities to earn the same amount of money elsewhere. It did not do so. (I’m seeing a pattern here with St. Rose, are you?) The trial judge allowed the jury to rely on its “common sense”. The Supreme Court clearly didn’t think too highly of anyone’s common sense here.
On somewhat of a side note, I do feel compelled to note that there is no indication in the court’s opinion (which you can find here) that St. Rose even disputed that it violated her FMLA rights. Their sole argument seems to have been they shouldn’t have to pay for their bad behavior because she didn’t mitigate her damages. Just sayin’…
All right, then. Let’s recap with some takeaway’s.
When your employee is injured on the job, you should:
- Give him/her the workers’ comp claim form and report the injury to your carrier;
- Make sure s/he receives a medical examination and all appropriate medical treatment;
- Allow him/her appropriate time to recover from the injury;
- Evaluate whether light duty, temporary reassignment or similar accommodations are appropriate;
- Notify him/her of his/her rights under FMLA if you are subject to it and the injury is a serious health condition within the meaning of the FMLA;
- Allow him/her to exercise his/her rights under FMLA, if applicable and follow all FMLA requirements;
When your employee is injured on the job, you should NOT:
- Fire him/her;
- Take any adverse action, because that could be construed as retaliation, which is prohibited under FMLA and workers’ comp laws;
- Forget about the ADA, and the requirement to evaluate eligibility for reasonable accommodations.
OK, let’s wrap that up for now. See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ