Several bills pertaining to Wisconsin Workers Compensation were signed into law in 2016. It is important that we understand how these changes may affect us and also, how we may adjust our internal processes to best position ourselves for success. A couple of the new changes are detailed below. This is conveyed for informational purposes only and is not to be considered legal advice. If you have any questions as to how this may affect an individual business entity, consult with your Human Resources expert or other legal counsel.
WHAT HAPPENS WHEN AN EMPLOYEE CONDUCTS MISCONDUCT WHILE WORKING A TEMPORARY LIGHT DUTY JOB?
One of the new changes concerns the attitude and activities of an employee that has returned to work on a temporary, light duty basis. The new law states that, in such situations, if the employee is suspended or terminated due to misconduct, temporary disability benefits may be terminated.
The term misconduct could include things such as:
- Theft of an employer’s property or services
- Intentional or negligent acts by an employee that causes substantial damage to his or her employer’s property
- Conviction of a crime or other offense if the conviction makes it impossible for the employee to perform their job
- One or more threats or acts of harassment, assault, or other physical violence instigated by an employee at the workplace
- A violation of the employer’s posted, public written drug and alcohol policy, when the employer can prove the employee knew of it
- Excessive absenteeism or tardiness by an employee in violation of the employer’s posted, public written policy on the subject
This does not include:
- One or more minor infractions of rules prior to being warned
- One or more inadvertent errors made by the employee
- Any failure of the employee to perform work because of insufficient skill, ability, or equipment
WHAT HAPPENS WHEN AN EMPLOYEE’S INJURY IS CAUSED BY THEIR OWN INTOXICATION?
The old law said that if it could be shown that an employee was injured because they were intoxicated, it could result in a 15% deduction in indemnity benefits. The new law says that if it can be shown that an employee’s intoxication is in violation of the employer’s alcohol and drug policy that no recovery for indemnity or death benefit shall be allowed. This can result in a huge reduction in the value of a claim.
The burden of proof, that the employee was intoxicated and that the intoxication caused the injury, is on the employer and workers compensation insurer. So, in order for such a case to be successfully defended, several things need to happen:
- After an accident happens and it is suspected that intoxication in violation of the employer’s drug and alcohol policy was a factor, it is important to have the employee tested. This can be done in-house if the employer has the proper facilities, or it can be done at a doctor’s office.
- After a workers compensation claim is made and if #1 above proves positive, the insurance company will seek an expert opinion as to the causal relationship between the intoxication and the accident.
WHAT CAN THE EMPLOYER DO NOW, BEFORE SUCH ACCIDENTS HAPPEN?
Before the accident happens:
- The employer should have written company policies pertaining to topics such as:
- Drug and alcohol use
- Attendance and tardiness
- The employer should document that the employee knew of these policies before the violation occurred:
- One way is to provide each employee with two copies of this policy. Then have the employee sign and date one stating that they received, read (or had it explained to them) and understand the policy and have that form placed in their personnel file.
- It is also not a bad idea to place such policy documents into employee’s employment/training handbooks and/or post them onto employee bulletin boards.