Should an employer make accommodations for a non-work related injury? This is an interesting question and one that all employers will likely face at some point.
I’ll start with saying that there is nothing that saysyou can’t accommodate a personal injury. However, there are some potential liability in doing so. Most liability on the employers side is going to be triggered by fault. Tennessee law has been clear that an employer takes an employee “as is” and assumes the responsibility of having a pre-existing condition aggravated by a work related injury. What this means is that if you let an employee come in and work with some sort of an injury and that injury gets worse because of the work he/she was performing, that injury could now become a workers compensation case. Except in the most obvious, simple and routine cases, a claimant must establish by expert medical evidence the causal relationship between the claimed injury and the employment activity. An employee does not suffer a compensable injury where the work activity aggravates the pre-existing condition merely by increasing the pain. However, if the work injury advances the severity of the pre-existing condition, or if, as a result of the pre-existing condition, the employee suffers a new, distinct injury other than increased pain, then the work injury is compensable.
Best practices:
- Don’t allow it. Especially if the worker is doing some kind of manual labor. Use common since if the worker stumped his toe and sits behind a computer all day.
- Get a release with no restrictions from the employee’s personal doctor. Depending on the severity of the injury, have the doctor also sign a job description of the employee’s duties signifying that the doctor has reviewed the employee’s day to day responsibilities.
Remember that if you do allow it once, you have set a precedence. This becomes a whole other territory of having to explain why one worker can and one worker can’t.
Will Cartwright
Cartwright Law LLC
Citations: Cloyd v Hartco Flooring274 S.W. 3d 638, 643 (Tenn. 2008), Trosper v Armstrong Wood Prods 273 S.W. 3d 598, 607 (Tenn. 2008), Excel Polymers, LLC v Broyles 302 S.W. 3d 268, 274 (Tenn. 2009)