Employee ignores doctor, company pays
September 21, 2008 by Bill MeltzerPosted in: Compliance, Disability, In this week's e-newsletter, Latest News & Views
When an employee ignores directions from a doctor, who’s responsible if the worker causes a serious accident on the job?
In some cases, it’s your firm that ends up on the hook – both for workers’ comp and for other people’s injuries caused by misuse of a prescription drug.
Situations such as these raise three questions that even HR/benefits pros have trouble answering. How are you – or supervisors – supposed to know what meds people are on and whether they’re taking them as directed by their doctors?
In most cases, you won’t.
Can you find out without violating HIPAA or other laws?
You can’t, unless the employee volunteers the info or a doctor notes the effects of medication being the reason for the accident.
So if you won’t know and can’t find out, how on earth can your firm be held responsible after the fact?
It all depends on the circumstances. Three key danger signs:
- A supervisor already has knowledge of an employee’s medical condition, if not the meds themselves. Example: The employee requested a schedule change and said it was due to a particular medical problem
- The person has a history of erratic behavior that management suspects is medication-related, and/or
- The employee’s job involves potentially dangerous situations.
Spotting possible danger
A Florida case (Johnson v. Rentway) is a classic example of the two of the three big danger signs.
- The supervisor knew an employee had insulin-dependent diabetes.
- The employee was under doctor’s orders to take insulin at specific times, which required the company to adjust the employee’s schedule.
But due to short staffing, the employee was often forced to work shifts that overlapped with times he was supposed to take injections.
What’s more, the employee worked a potentially dangerous job (he was a professional truck driver).
Finally, the inevitable happpened. The employee suffered a diabetic blackout at the wheel, causing a serious crash that injured himself and another driver.
The employee filed for workers’ comp, and the injured driver sued the company. The firm fought – and lost– both cases. Total cost: $5 million.
September 25th, 2008 at 2:17 pm
Okay so that is ridiculous. It takes a couple minutes to administer an insulin injection when including testing your sugar levels, It is absurd that the employer be held responsible for an employee not pulling over to medicate himself. Would the employee have skipped a bathroom break and relieved himself in the truck, I think not. Employees need to have some personal responsibility. I have a friend with diabetes and it doesn’t affect his ability to work. It is unfortunate that the world we live and work in is out for a quick buck and wants to sue everyone!
September 25th, 2008 at 4:52 pm
9-25-08
Yeah – that’s often referred to as the “lottery mentality” – and I agree a person with a condition like diabetes should have enough interest in his/her personal health and survival, not to mention avoiding endangering others, to do what the doc says. There are times when employers are at fault and there are definitely times when individuals need to face facts. That theory that there is a child inside all of us all through our lives makes more sense the more we observe this kind of thinking and behavior.
September 25th, 2008 at 5:01 pm
Insulin must be refrigerated. If the job required the employee to work away from a safely refrigerated storage area and did not give the employee the opportunity to have access to his insulin on a timely basis then the court was correct.
Yes there are thermos like carriers for insulin, but they too require a predictable replenishment of the chilling agent and are chancy for regular use. If the insulin is not kept refrigerated it becomes unsafe to use.
The stress of multiple overlapping shifts can also change radically the amount of insulin needed. As an insulin dependent diabetic I am not so quick to judge this one.
September 26th, 2008 at 9:20 am
This doesn’t make any sense to me. It’s not that difficult or time consuming to administer an insulin shot. If they are a “brittle” diabetic, pumps are available to further assist in managing the disease. There is no reason this employee couldn’t have stopped for a few minutes to give themselves an injection at the times needed. What was the employer supposed to do? Tackle them and forcefully give them their medication? Surely there was more to it than this, because if not, our court system is even more jacked up than I thought. Unless the employer actually prevented him from taking a few minutes to give himself an injection, this is nuts.
The most an employer can do is provide time for employees to take care of themselves as needed and monitor for any unusual out-of-character behavior that might indicate a problem. And that’s the way it should be. Employees have a responsibility to take care of themselves and follow their doctor’s orders. An employer can’t be a caregiver and babysitter.
September 26th, 2008 at 10:50 am
I don’t know what type of insulin you are on, but according to the American Diabetes Association insulin does not need to be refrigerate, only protected from extreme conditions. So once again, employees need to take responsibility for their themselves. And besides, how is the employer supposed to know whether the employee has taken their insulin, do they need to observe just like collecting urine samples for drug tests. Come on.
September 26th, 2008 at 1:46 pm
We had a similar situation. An employee colapsed because of dehydration. The workers comp company denied the claim because an employee with medical problems has an obligation to take care of their health.
I agree there might have been more to the case above but how would you know whether a truck dirver was taking care of himself. It’s not like he is sharing your office and you can see the signs. Ironically if you had let the employee go because he was not taking care of himself and was no longer qualified for the job that probably would have ended in a lawsuit also.
January 27th, 2009 at 3:18 pm
I really have to take exception to the phrase “Finally, the inevitable happened. The employee suffered a diabetic blackout at the wheel, causing a serious crash that injured himself and another driver.” A diabetic blacking out at the wheel is not an inevitable event. Having someone who is diabetic working extra shifts should not be an issue as long as the individual can plan for it and have some nourishment to keep their blood sugars at an appropriate level. When you are diabetic you should always have some sort of glucose handy to ingest if you get too low. For those who are unlucky enough to not be able to feel the onset of low blood sugars, they need to test more frequently, especially if they are performing tasks like driving, to ensure they don’t end up in a low blood sugar situation.
The blackout referred to is caused by taking too much insulin, not too little as some others suggest. Obviously, this person needed to test their blood sugar levels more frequently, which is a process that takes 30 – 60 seconds. Pulling off the road testing and getting back on the road is something that should not have consumed more than 2-3 minutes even if done several times a day it should not have presented an issue and should be a reasonable accommodation by the employer. The employee needs to take ownership of their disease and take the steps necessary to stay healthy and clear of mind.
January 27th, 2009 at 5:16 pm
Sorry, not all insulin is free from the need to be refigerated. Mine definitely requires it. Also exactly how sterile is the reading taken by a truck driver without access to necessary facilities to clean the area to take a blood sample? If the sample is contaminated the reading is meaningless.
If the employer had arranged a set schedule for the driver to take breaks and deal with his medical issue and then required him to work such that that schedule could not be met, then that employer is neglegent in its responsibility to provide a safe working environment. I expect the employer to lose this one and think that they should.
March 19th, 2009 at 9:44 am
So the employer is now supposed to play an active role as “babysitter” with their employees? Knowing that the employee had diabetes and understanding that medication is needed, why wouldn’t the employee take a more active role in his health rather than wait for the employer to ring the bell, signaling his medication taking time?! Absolutely ridiculous. I completely agree with the “lottery mentality” as Judy stated.
March 20th, 2009 at 10:07 am
Taking this in a little different direction. I’ll tell you what’s really difficult is getting an executive to obey their doctor’s orders if you’re lucky enough to know about them. What does an HR Manager say to the President of a company in a situation like this other than “you’re putting the company at risk”?
April 10th, 2009 at 8:17 pm
Pro drivers are not repeat not to be able to drive if they take injections for there condition. end of sub the judge was wrong the dr. who gave this driver his physical card should be held responsible for this not the company