The Moral of the Claim: When Suspension is Smarter Than Termination
We’ve all seen it or been there before; an employee whose work ethic begins to slip, or whose attitude creates tension in the workplace without being outright inappropriate. What do you do when the employee is toeing the line between good and bad, reliable and untrustworthy? Let’s look at a hypothetical situation where you, the employer, are put in that position and let Insured Solutions’ own Risk Manager, Steve Petty, guide us as to how we should react.
It begins with an injury on the work site, and your employee is sent to the hospital for an examination. Part of the workup involves a drug test, which your employee willingly takes, but the results come back inconclusive and the test must be re-run. Rather than submit to the test again, the employee leaves, which constitutes an automatic failure. This is the moment where you should immediately seek advice from Insured Solutions and start a claim, but for the sake of this lesson let’s assume that you weren’t made aware of the violation, or were simply unsure as to what to do and didn’t file a claim.
After this incident, you notice your employee’s quality of work slipping and their enthusiasm diminishing. You cite the employee for poor performance, coach them, and ask them to step up their work performance. Rather than complying, the employee becomes angry and threatens you verbally and physically, which should and does instantly prompt you to call the police. At this moment emotions and adrenaline could be running high and the temptation may be to immediately terminate the employee. You wisely decide to wait for the police to arrive to fully document the incident, but the employee is now claiming an injury that they are attributing to this altercation. The police fully examine them, find no sign of injury, and after running a name check they find an outstanding warrant and bring the employee into the station for a night.
Can you still not terminate this employee, who is causing so many problems for you and your business, and who just spent a night in jail? The answer is no, as the smarter approach is to suspend without pay pending investigation. The benefits to this approach are numerous. First, this gives you a time buffer to gather documentation on all of the incidents. We can’t stress enough how important it is to accurately and thoroughly document every step of the way. Get hospital reports and test results. Get the police report and eyewitness statements. Send the suspension notification documents via certified mail using a copy of the mailing and returned green card as evidence of notification (signed by the employee or not). Do everything you can to gather job site facts from everyone present and do everything by the books, because the truth only matters if it can be tracked and proven on paper.
Second, let’s think back to the moment when you called the police. What if you had reflexively terminated the employee then and there only to find out later that the employee really was injured and verified as such by the police, even if it wasn’t a result of the altercation? If the employee takes any action against you, it’s very difficult for you to defend yourself now because you terminated the employee, and left no middle ground for investigation or documentation. What the lawyers will use against you, what the documents will say, and what the courts will see is that you terminated an employee who was injured with no hard evidence supporting your decision. This puts the employee and the legal system in control, where suspension without pay gives you future control without continuing to write paychecks to a bad employee. . This action also allows the carrier to deny the work comp claim based on a suspension for cause, thus denying TTD (Indemnity) payments to the employee since it was they who caused their own suspension without pay meaning neither the employer nor the carrier were obligated to pay the usual weekly benefit check. Conversely a termination would have opened up weekly benefits checks for years forcing a calculated costly settlement that would damage the employers’ loss run and drive up their MOD for years regardless of the situational validity.
“Anytime there is concern that there is a potential injury, complaint, or anything that would have any connection with a Work Comp situation, never, never terminate an employee for any reason connected to the workplace or to an alleged injury. Always use a suspension without pay subject to investigation” says Steve. “What this does is allow flexibility when dealing with future unknowns. Most handbooks or manuals have steps involving suspensions that can range from a few days to a month. By setting it up in 30-day blocks you have time to regroup and change the suspension, or rescind the suspension if necessary whereas a termination is permanent and it cannot be rescinded.”
If ever in doubt, it’s always best to seek advice from the experts themselves. Steve is one such expert, and can always be reached via email at steve.petty@insuredsolutions.net or by phone at (877)-213-1999 ext. 205. We encourage and welcome your questions. In the meantime, stay smart and thorough, and you’ll have nothing to fear.