When an employer ignores your restrictions: Stand firm

A common refrain from injured employees is this: I’ve been injured at work, I’ve notified my employer, and I am treating with a doctor for my injury. My doctor has provided me light-duty work restrictions, but my employer refuses to honor those restrictions. What do I do?

My first response to this unfortunate query is usually: What is this employer thinking? My second response to the client is: Stand firm. You’ve been put in a tough spot through no fault of your own, but with a reasonable, measured response, we can push through this difficult situation and even come out ahead in the end.

The law requires that employers attempt to accommodate injured workers’ restrictions whenever possible. The “whenever possible” aspect of this rule, however, is the tricky part. Some employers go to great lengths to accommodate an injured employee’s restrictions. If that’s your situation, great. You probably don’t need to read anymore of this post.

Other employers, however, fail to hold an employee’s work restrictions in very high regard. Some will outright ignore restrictions, telling the employee just to get back to work even if the work is outside the restrictions. Others will engage in a kind of “duty creep,” where they accommodate the worker’s restrictions at first, but then gradually increase the workload beyond the employee’s restrictions.

The motivation for this on the employer’s part is varied, but it usually has financial underpinnings. Many employers see injured workers as a drag on the bottom line, and they have pressure to keep production up. Paying injured workers for significantly less performance than they provided previously tends to be low on the priority list for many employers. There may also be an element of resentment or spite on the employer’s part, who may simply have an irrational aversion to employees on workers compensation.

Whatever the motivation, often the goal of an employer pushing an injured worker’s restriction limits is to compel that employee to quit the job.

Do NOT do this. I repeat: Do NOT quit your job – at least not unless the situation becomes unbearable. When an employee voluntarily severs employment, the employee provides the workers’ compensation insurer grounds to discontinue payment of wage-loss benefits. In other words, if you quit, you’ll not only lose your wages, they’ll probably stop paying you work comp, too. So unless you’ve got a better gig already lined up and waiting for you, this does not make a lot of sense.

At the same time, it makes little sense to soldier on loading those trucks and lifting far beyond your doctor’s 20-pound waist-to-shoulder lifting restrictions. Or to keep cranking out widget after widget on the assembly line ten hours a day using the same repetitive motion that gave you the epicondylitis in the first place. To do so is to surrender, and it puts you at risk of greater, permanent injury and knocking you further out of work than you already are.

I recommend that clients always carry a copy of their latest restrictions with them. Literally. Fold it up and keep it in your pocket. When faced with the prospect of a supervisor or colleague asking you to do more than your doctor recommends, calmly explain that the requested task is outside your restrictions and ask if there is alternative work within your restrictions. Do not get mad. Do not argue. Do not brag. If the supervisor either doesn’t believe you or further insists on violating the restrictions, you have the doctor’s orders in your pocket to fall back on. If that still doesn’t work with your supervisor, then address the issue with your supervisor’s supervisor or human resources. The point is to remove the onus of accommodating your restrictions from you and put it back on the employer, which is where it belongs. At that point, the employer either has to find you accommodating and suitable work or it does not. And if not, you will be entitled to workers’ compensation benefits for your lost wages.

Ideally, this is how it is supposed to work, but in the real world it can look a lot different. An employee’s fear of losing a job for asserting restrictions is powerful, and it’s entirely understandable. Employers (and insurers) know this, and they can take advantage of it in order to try and push workers’ compensation employees out the door. This is how restrictions get ignored in the first place. But it’s important to know that you are protected by the law. There are legal consequences for employers who retaliate against an employee who has filed a workers’ compensation claim.

If you are in position where you fear losing your job for asserting your restrictions, the choice is clear: Talk to an experienced workers’ compensation attorney. My hope is that you have already contacted JD Schroeder Law well before this happens so that the situation can be addressed early on. But if you are forced to choose between your health and your job, the choice invariably should settle on your health. Let JD Schroeder Law help you take care of the job and lost wages part of it.

- Jeff