Injured on the Job, Now What?

Headshot - Peg O'Brien
Margaret "Peg" O'Brien
Director, Litigation Department and Vice-Chair of the Employment Law Group
Published: Business NH Magazine
January 12, 2022
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When an employee is injured in the workplace, most employers know they must report the incident to their workers’ compensation insurance carriers and the New Hampshire Department of Labor (“DOL”).  But, frequently other employment laws arise simultaneously and are overlooked.  While no two accidents are alike, below is a checklist of five legal issues to review and consider whenever an employee has been injured on the job:

1. Workers’ Compensation Reporting Obligation. As noted above, under New Hampshire 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 timely complete the First Report of Injury 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 twenty-four hours. OSHA defines in-patient hospitalization as a formal admission to the in-patient service of a hospital or clinic for care or treatment; treatment in an emergency room only is not reportable.  Failure to make a timely report can result in citations with fines of at least $750.  OSHA’s reporting number in New Hampshire 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 a “leave” right, 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 twelve weeks of unpaid leave in a twelve month period for qualifying reasons, such as absences due to an employee’s own serious health condition.  Employees on an approved FMLA leave are not expected to work and are eligible to 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 to clarify the employee’s work status.  The benefit to clarifying an employee’s leave status is that both employer and employee will 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; Workplace Accommodations. New Hampshire employers with five or more employees must provide temporary alternative work programs (aka “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 present 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 healthcare 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 fifteen 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 New Hampshire employers with fifteen 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.

No employer wants to see an employee injured in the workplace.  But, in the event an accident or illness does occur, it is helpful for the employer to have an established checklist to help smoothly manage the situation for both the company and its employee.