When an employee is injured in the workplace, most employers know they must report the incident to their workers’ compensation insurance carriers and the NH Department of Labor (DOL). Frequently, though, other employment laws arise simultaneously and are overlooked. While no two accidents are alike, here is a checklist of five legal issues to consider whenever an employee is injured on the job:
1. Workers’ Compensation Reporting Obligation. Under NH law, employers must file a First Report of Injury form with the DOL within five days after receiving notice of an employee’s injury. This form is available on the DOL website. The employer must also notify its insurance carrier of the injury. Failure to complete the form in a timely manner may result in civil penalties and loss of insurance coverage.
2. OSHA Reporting Obligation. When an employee dies on the job or suffers work-related hospitalization, amputation or loss of an eye, employers must inform the Occupational Safety and Health Agency (OSHA). A fatality must be reported within eight hours. For inpatient hospitalizations and amputations, employers must complete the report to OSHA within 24 hours. OSHA defines in-patient hospitalization as a formal admission to the in-patient service of a hospital or clinic for care or treatment. Only treatment in an emergency room is not reportable. Failure to make a timely report can result in citations with fines of at least $750. OSHA’s reporting number in NH
is 603-225-1629.
3. Clarification of the Employee’s Status. Following an injury, an employee may require a leave of absence from work. Many employers mistakenly believe workers’ compensation is protected leave time, but it is not. Workers’ compensation insurance is merely a source of financial protection for an eligible employee. This means that an employer must check to see what, if any, leave policies may apply. For employers with 50 or more employees, the federal Family and Medical Leave Act (FMLA) will frequently afford covered employees with protected leave following a workplace injury. The FMLA provides 12 weeks of unpaid leave in a 12-month period for qualifying reasons, such as absences due to an employee’s serious health condition. Employees on an approved FMLA leave are not expected to work and are eligible for reinstatement to the same or equivalent position, with limited exceptions.
If an employer is not covered by FMLA or the employee is ineligible for FMLA, then the employer may have a Personal Unpaid Leave of Absence policy that will apply. This allows both the employer and employee to have a clear understanding of the anticipated length of the leave, paid time off accrual rights, obligations to make payments for group health insurance premiums, reporting obligations while on leave and reinstatement rights, if any.
4. Temporary Alternative Duty and Workplace Accommodations. New Hampshire employers with five or more employees must provide temporary alternative work programs (or “light duty”) to bring injured employees back to work. Employers must develop a written policy to advise employees of the established procedures to obtain alternative work in the event of an on-the-job injury. Each position within the company should have a job description that details requirements and essential functions for the job. When an employee is able to work with restrictions, the company should review its temporary alternative duty obligations and work with the employee and the employee’s health care provider to find appropriate work, if any is possible, on a temporary basis.
In addition, and depending on the nature of the injury, an employee may also have rights to an accommodation pursuant to the federal Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees, or the state law equivalent of the ADA, which applies to employers with six or more employees. Some forms of reasonable workplace accommodations include: modifying facilities to make them usable by disabled employees, restructuring work schedules and providing a reasonable amount of unpaid leave for medical treatment and recovery (which may include the extension of leave time following the exhaustion of FMLA leave).
5. Investigate. Another frequently overlooked legal requirement is for all NH employers with 15 or more employees to have a written safety program. As part of this program, employers should require the completion of an investigation into the accident to see what, if any, steps may be taken to avoid a recurrence. The DOL has a sample program on its website.
Peg O’Brien is a director at McLane Middleton and a member of the firm’s Employment Law Practice Group. She can be reached at 603-628-1490 or margaret.obrien@mclane.com.