As shown by the votes thus far in our latest poll, medical leave issues continue to confound HR professionals and business owners.

One item rather frequently requested by our visitors is a handy guide to the interplay among the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA) and workers’ compensation (WC).

Ask and you shall receive …

Click here for our brand-new ADA vs. FMLA vs. WC Cheat Sheet. Thanks to the fine folks at McGuire Woods LLP for their assistance in putting this together!

In our most recent Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue.

To help lower your temperature, we recently devoted an entire week to answering your medical questions, starting here. Because we couldn’t get to all your questions in a single week, this week we’ll be presenting Medical Week, Part 2.

Today’s topic: Workers’ Compensation

Q: In the last three years, an employee has had ten workers compensation injuries. She is pretty routine in how often she gets injured — almost every 90 days. Each time, it’s a different body part and usually it’s an injury with no visible signs of physical damage. We believe that she injures herself on purpose, but we have no way to prove the injuries are real because there are never any witnesses. Help!

Great question. Employers should be very careful in dealing with suspected workers’ compensation abusers. Many states provide specific statutory prohibitions against WC retaliation (and impose stiff penalties on employers who violate them).

So, what can an employer do if it suspects someone is scamming the system? There are two primary tools.

First, most WC statutes allow medical examinations by a physician of the employer’s choosing. The results of that examination can help an employer decide if there are grounds for suspicion.

Second, investigate, investigate, investigate. But make sure you follow a consistent policy and procedure to avoid potential retaliation and discrimination claims. Also, choose your investigator wisely. Shoddy investigations can potentially jeopardize an employer’s defnse to a claim and may even lead to trespassing, invasion of privacy and other claims.

If the results of the examination and investigation make it clear that the employee has acted fraudulently, take action consistent with your company’s past practice. It’s also a good idea to contact your favorite WC attorney prior to taking action to make sure you have all your bases covered.

Tune in tomorrow for more answers to your medical questions. As always, please keep our official disclaimer in mind.

In last week’s edition of You Be the Judge, we described a real-life case out of Ohio for your consideration.  We gave you the following facts and asked you to decide who wins.  If you need a refresher, read through ‘em again.  If not, skip to the end where we’ll give you the results and tell you how the court actually ruled.

The Facts

James Weimer worked on the assembly line at Honda’s Marysville, Ohio plant.  On February 21, 2006, a co-worker slammed a trunk lid on Weimer’s head.  He was taken to the emergency room where he was diagnosed with a concussion and a strained muscle.

Weimer was then seen by doctors under contract to Honda.  They ordered him to remain off work through March 15.  Weimer requested FMLA leave and the company approved his request.

However, after receiving a tip that Weimer might not be as injured as he claimed, Honda obtained video of him doing house and yard work.  The video showed Weimer adding a front porch to his home and lugging heavy materials around his yard while on leave.

When Weimer returned to work on March 16, the company questioned him.  He admitted doing the house and yard during his leave.  Honda fired him for dishonesty and FMLA abuse.

The Lawsuit

Weimer filed a lawsuit, claiming that the company fired him in retaliation for taking FMLA leave.  Honda denied the claims.  The parties conducted discovery and then each filed a motion for summary judgment in its favor.

Honda argued that it fired Weimer for lying and for abusing his leave.  The centerpiece of its case was the video, which Honda said was proof that Weimer (1) failed to tell his doctors that he had recovered enough to return to work and (2) stayed on leave longer than he was eligible.

Weimer countered that he told the doctors that he didn’t feel injured enough to take the entire recommended leave.  He argued that he was capable of returning to work earlier but was unable to do so because of the recommendations of Honda’s own doctors.

The Results

73% of you said the employee should win.  27% said the company should win.

How Did the Court Actually Rule?

As you guessed, the court ruled in Weimer’s favor (at least so far).  It refused to grant summary judgment to Honda and ordered the case to trial to determine whether Weimer was (1) merely obeying doctor’s orders or (2) an “opportunistic schemer taking advantage of the system in order to have time to enhance the curb appeal of his home.”  One of the reasons it ruled against Honda was because it found a legitimate dispute as to whether Weimer’s injuries prevented him from performing his job duties even though they may not have kept him from performing the tasks depicted in the video.

The Lessons

First, know the ins and outs of the FMLA and train supervisors on how to handle leave requests and return to work properly.  We’ll be posting an FMLA Cheat Sheet in the next few days to help you in this endeavor.

Second, don’t jump to conclusions just because you believe you have “smoking gun” evidence of an employee’s guilt.  Follow our Investigation Tips to make sure you get all the facts, including giving the employee a chance to tell his or her side of the story.

Third, just because an employee is doing something other than sitting on the couch during leave doesn’t automatically mean that leave is being abused.  If an employee is spotted at the mall, doing aerobics or even building a porch, don’t assume it’s grounds for discipline unless the activity clearly violates the doctor’s restrictions.  Even then, make sure you have all the facts and that you’re doing the right thing before taking action.

Demonstrating the dangers of workers’ comp retaliation, an Iowa court upheld a $1 million verdict awarded to an employee who was disciplined and then terminated by her employer after she filed a workers’ comp claim.

The court concluded that there was enough evidence to support the determination that the employee’s workers’ comp claim was the determining factor in the decision by the company (Graham Manufacturing Corp.) to terminate her. The verdict included $25,000 for emotional distress, $50,000 back pay, $150,000 front pay and $775,000 in punitive damages.

Among other things, the court found that the timing of the warnings and termination was highly suspect.

The employee sustained a work-related back injury in April 2002 and was put on light duty by her physician. A few days later, her supervisor issued her a performance warning.

The employee’s doctor issued more restrictive work restrictions in June 2002. A few days later, the employee’s supervisor issued her a second performance warning.

The employee’s doctor then notified the company’s insurer that the employee had a herniated disc and nerve impingement. A few days later, the employee’s supervisor sent HR an email suggesting that the employee be assigned to a less-than-desirable restroom cleaning job or be moved to her prior lower-paying job. The supervisor also held a meeting to discuss his department’s workers’ comp costs.

The employee reluctantly agreed to go back to her lower-paying job. Her new supervisor demonstrated his disdain for her work restrictions by allegedly picking up the chair ordered by her doctor for rest breaks and throwing it across the room.

After the employee hired an attorney to help her pursue workers’ comp benefits, the second supervisor gave her a third performance warning. The employee then complained to HR. Two weeks later, the supervisor fired the employee.

In its decision, the court pointed to a number of factors supporting the verdict, particularly (1) the suspicious timing of the warnings and termination, (2) the first supervisor’s email to HR and workers’ comp cost-cutting meeting and (3) hostility expressed by the second supervisor.

The lessons? Educate managers on the perils of retaliating in any way against employees who file workers’ comp claims. Help them understand that communications — whether emails or meetings — can be used against them as evidence. Closely scrutinize discipline and termination decisions to ensure that they are fair and in no way tied to the filing of a workers’ comp claim.