Employment physicals?

Discussion in 'The Watercooler' started by witzend, Jul 14, 2009.

  1. witzend

    witzend Well-Known Member

    Does anyone have any experience with getting a physical for employment purposes? I'm looking more for information to apply to an employee at our work who has deteriorating health issues and can't do the job anymore. Here's the deal.

    G is about 200 pounds overweight. He is 57 years old. He's had a stroke, is an insulin dependent diabetic, has high blood pressure, asthma, and in the past year suffered congestive heart failure 3 times. The last time was three weeks ago, and I have reason to believe that he will be hospitalized again for the same condition shortly as all of the same symptoms are there.

    His duties consist of some office work, and other work that requires him to climb ladders and stairs, carry loads up to 100 pounds, work odd hours, stand on his feet, drive long distances, etc. When he goes out on jobs with the other guys, he will go halfway up a ladder, ask for help with whatever he is carrying, then not go up or down the ladder again. He recently refused to go out on a large job because he was, and this is a verbatim quote "afraid that if I go up on that ladder I will die of an asthma attack." Last year he took 34 sick days, and always came back with a doctor's note saying he could return to full duty. Last week he emptied his garbage can and had to take a nap. I am not kidding.

    Recently with the downturn in the economy, and particularly because this one of two other employees does so little real work, my boss laid the guys off of monthly wages and is paying them only for hourly work as needed. The guys are collecting unemployment benefits, which is legal and allowed under these circumstances. G does have some valuable insight as to memories of what particular tool or part was used on a job 5 years ago. It is helpful, but not worth a monthly wage. Work is going undone, customers notice and are not hiring us, and my boss is too nice to do anything about it because G always says he's perfectly capable of doing the job.

    I think we should have a doctor look at G and specifically address what job duties he can and can not safely perform, and under what circumstances. I know that if a doctor says he can't do the work that he can't collect unemployment, because we WILL hire someone full time to replace him. But the guy is an expert at "his rights", if you know what I mean. If something happens, his family will sue for sure. Then again, we don't want to pay for every test under the sun for this guy.

    What do you have done for an employment physical? Would we have to do an MRI? Can we use his insurance? Can we just ask for blood tests and a stress test? Again, will insurance cover that? I'm sure it would be tax deductible. Anyone with any doctor's office experience or HR experience on this, can you give me the low-down?
    Last edited: Jul 14, 2009
  2. DaisyFace

    DaisyFace Love me...Love me not


    Generally, a patient's private insurance will NOT cover an employment physical.

    Additionally, if your company is seeking a physical to prevent this man from working AND to avoid paying any kind of disability or unemployment compensation--I'm not sure how you will avoid a lawsuit.

    However, labor laws vary from state to state....so you may have to look into your state's specific provisions in regards to an employee that is no longer physically capable of performing the work for which he was hired.

    Good luck!

  3. AnnieO

    AnnieO Shooting from the Hip

    If he is refusing to do the work, but his doctor says he can, that would fall under insubordination.

    If his doctor says he cannot, then his tasks must be limited to what he can perform.

    However, if said tasks do not add up to monthly wages, then that combined with the doctor's assessment would get him partial wages from your company and disability/SSI.

    Are you unionized?
  4. slsh

    slsh member since 1999

    I would think this is something for boss's attorney. I would question whether you can require a physical if it's not a company-wide requirement. You'd probably be tip-toeing into ADA issues. husband's company gives him a physical on a yearly basis but it is a company-wide policy (and it's truly a safety issue given nature of his work).

    on the other hand, boss should have a written policy re: work performance as well as absences. If G isn't doing duties as assigned, that's nonperformance of job. If G states his health won't allow him to do duties as assigned, even though physician has released him to full duty... again, to cover boss's posterior I think his atty would need to make sure that all bases are covered. If he's absent above and beyond company policy, isn't that a fireable offense (assuming FMLA doesn't apply to your company)?
  5. witzend

    witzend Well-Known Member

    Step2, I think that where you are going with this applies more accurately to what I am asking. I think he is misrepresenting to his doctor what his job duties are, so that when his doctor releases him to work, he is unaware of what he is releasing him to do. Our company is the owner, these two employees, and I am an independent contractor who does his books and other private services. Other than SSI, we pay nothing into any disability fund.

    I think our concerns are these:

    1) G will do work that his doctor doesn't know he is doing and will die doing that work;

    2) G will continue to refuse to do work that we could hire someone else to do and it will continue to harm our business to be short able bodied employees;

    3) If we inform the unemployment division that G is unable to perform tasks and we are hiring someone else, G will lose his unemployment and go onto a 6 month waiting list for SSI. He doesn't have two cents to rub together and would be homeless within weeks;

    4) G will become injured or die because we "should have known how ill he was" and sue us;

    5) G will sue us because we hire someone who is able to do the job he refuses to do but won't have his doctor limit him from doing.

    We're keeping as many notes as we can, but this is a guy who really knows how to work the system, and will.
  6. Star*

    Star* call 911........call 911

    Sounds like it's time to find an attorney who use to work FOR workers compensation and get his advice.

    I think if he has already been working there for you and there were no physical requirements for the job when it began I'm not sure that by law you can just pop up with some employment physical UNLESS you change workers compensation insurance companies and their new guidelines say you must do XYZ.

    Check with the people who you have your workers compensation insurance with - most companies are audited annually. Find out when you are going to be audited and maybe hint or request that your broker or agent find you some company that makes MANDITORY requirements on employee physicals before policy renewal.

    Just throwing it out there for consideration.

    WHen we renewed - we asked for a manditory drug policy because our experience modifier can go down in points IF we have no claims and have a drug policy in place.
  7. AnnieO

    AnnieO Shooting from the Hip

    Your boss needs to document. Verbal warning. Written warning. Termination for nonperformance. But - document and follow the company's disciplinary policy.

    Document, document, document. This guy is a difficult child, too!
  8. DammitJanet

    DammitJanet Well-Known Member Staff Member

    Just throwing this out there.

    What happens if it goes like Star says and the workmans comp physical (which I think is a brilliant idea) doctor comes back and says that this man cannot do his job anymore because of "disabilities". Doesnt that bring ADA into play and mandate his employer to make accommodations if available? Or would that just bring into play the SSDI card. How old is this man? With as ill as he sounds, it may not take him long to get disability though you are right on the actual six month waiting period though I am not sure if that applies to SSI. Does your state have a state disability fund? Some do.
  9. 1905

    1905 Well-Known Member

    I think your job would be responsible for paying for testing and treatment for this man if he does go for the physical. Something similar happpened to a friend, she needed an MRI, and then her job was required to pay for that. With his health issues, find out to what degree of responsibility your job would have to treat this man (and pay for)after the findings. If he's fired, he can collect unemployment.
  10. witzend

    witzend Well-Known Member

    I'm going to try to answer this, and a couple of other questions at the same time.

    No, they're a company of three people, including the owner. Most employment and especially ADA laws are written for companies of 25 or more. They don't apply to this company. Nor does COBRA law, not much of anything.

    Also, many many people misunderstand the ADA. The ADA states that you "must make a reasonable accommodation to enable a disabled employee to perform their job". Making a new job that is not needed for them because they can't do what they were hired to do wouldn't be a "reasonable accomodation". If he can't do the work there isn't work there for him.

    Six months applies to both SS disabilities, as it must be a permanent disability.

    Our state has a disability fund for if you're hurt on the job. Our state does not (and should not) have a disability fund for when you (as he does every day) eat your healthy breakfast at home then stop at MacDonald's on the way to work and eat two MacMuffin Meals including 32 oz pops every day, then go out to Taco Bell for lunch and double up on the salt.

    I have been thinking about what I am asking, and more and more I believe that this is a matter of insubordination. He gets ill and goes to the hospital and has the doctor release him to all work duties. But when the work comes around he says he won't do it because he is afraid he will die if he does. I think the medical thing goes out the window altogether.
  11. Star*

    Star* call 911........call 911

    Then does a mental thing come into play? (You said he was brilliant at getting around these things so I'm thinking like he may) If he is "afraid" or has SEVERE PTSD about doing a job that "may kill" him would that fall under mental anguish?

    I'm serious - really. Could he claim that the job causes him anxiety of such a high nature that he would need to be seen by a therapist for Stress disorders and be put on medical leave? Think this through.

    I'm saying this because I have lived with more than my share of clocks of the coo coo variety in my life. Also after living with my x's fantastical family of (insert the music THIS IS HOW WE DO IT) theme song - for getting to lay around the house all day on disability money I've lived under the roof with the best of the best in fradulent master manipulators. :(
  12. witzend

    witzend Well-Known Member

    You know, it's possible that he could pull about anything. I really think that the small size of the company makes them pretty exempt from most of the "he didn't make a job for me/accomodate me" thing. It's going to be more about payback with the secrets the guy knows, I think.

    I did get the boss to confirm that we need a meeting to hire someone next week. This guy can sit quietly and collect his unemployment until the end of the year, or he can make a stink and get fired outright. In order to get the boss to follow through, I think I have to make an appointment. He's really wishy-washy.
  13. KTMom91

    KTMom91 Well-Known Member

    Is he an actual employee or an independent contractor? That will make a difference in his (and the company's) rights and /or obligations.
  14. 1905

    1905 Well-Known Member

    My job doesn't have disability ins. either, but I know this and bought it on my own. I'm sure it's not your problem if he didn't choose to purchase this. I live in an area lots of casinos, they are union employees, but....if someone gets ill, cancer, whatever, and can't do all their job requires-they're fired. There is no finding them a job they can do. It happens so often around here, it's got to be legal.
  15. susiestar

    susiestar Roll With It

    I would see if the owner will make a new policy for attendance. X sick days a quarter. That does not count "no shows". For no shows, first one is a write up, second is fired.

    If an employee refuses to do a task that is part of their official job description, then that employee is cited for insubordination or work refusal. First citation is a warning, second it a warning, third is fired.

    He also need to set up formal job descriptions. Make sure it is all in writing if it hasn't been. That makes the insubordination policy work - with-o a formal description the guy can claim "I didn't know I had to lift 100 pounds or climb ladders. I thought I did it all day for fun" or whatever idiot reason he concocts.

    Sorry the boss is wishy washy.
  16. DammitJanet

    DammitJanet Well-Known Member Staff Member

    Ya know...I just dont see how this guy can claim he has the right to work somewhere if he isnt capable of working there. Is your state a right to work state? I know in NC, an employer can fire you at will. No reason is needed. They can fire you because they got a bug up their butt and dont like your eye color one day.

    I had to use FMLA when I first got fibro. It was right after a traffic accident. I worked for county government. I used it one month at a time over a period of time. When later I needed it again, I wasnt able to because of the time period and it came down to the decision of not only did I have enough vacation/sick days but also...would I be able to do the job. They didnt have to continue to employee me if I couldnt do the job I was originally hired to do.
  17. witzend

    witzend Well-Known Member

    Nope, not a "right to work" state. Thank goodness. But then again, being as there are only two employees, most employment laws don't apply to us. I think I am totally on the "insubordination" page, at this point. We did last year talk to him about the number of sick days he was taking, but as he is only on call at this time, that doesn't really apply. But when you're on call and you don't show, do you really have a job? LOL!

    My boss is way too big of a softy. He's still paying these guys their auto allowance and their health insurance even though they hardly work at all. I'm sure that if he let this guy go, he would still pay his COBRA, even though with only two employees that law does not apply to us.

    And thinking that G may be mentally unstable is not a stretch. He's very much a conspiracy theorist, and anything that anyone says that is in line with his way of thinking must be true. We had a rather heated debate just the other day where he cited "facts and laws" to me regarding everything from Canadian Healthcare to retirement funds. He was just wrong on everything, and couldn't cite a source for anything whatsoever. But he is convinced that he would prefer to die of starvation in the gutter rather than take any government "handouts" like Social Security or food stamps. He may get a chance to test his theories out sooner than he thinks.

    Of course, his collecting unemployment checks and getting health insurance in spite of his not actually working doesn't bother him one bit. He just keeps saying "There's nothing wrong with the economy. I've got a job." Nothing in his head connects to anything in reality. I'm sure you know the type. "The government is ripping me off and we shouldn't pay for healthcare for people who can't afford it! Until it's me, then I paid into it so I'm due! But I'd rather have my family pay my bills. And I'm $25k behind on my taxes." In March he ordered personal items from one of our suppliers, then didn't pay the bill. Won't answer his phone. Saw the same supplier at a trade show in June and asked for a ball cap with logo. The supplier told our boss. I think not! G owes the supplier money, and the ball caps aren't free to him, why would he give one to G?

    Sorry. Went off on a tangent there. I dread going into work when I know this guy is there. It's just so difficult to have a rational thought with all that craziness swirling around...