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It is the peak of ski season, and it seems like everyone is talking about his or her weekends spent on the mountain. In light of this, if an employee reports a work-related knee injury, what should an employer do? What many employers may not realize is the answer may be the same whether you believe the injury occurred on the slopes or you saw it happen at the worksite.

Also, keep in mind that fraudulent workers鈥� compensation claims are likely less common than many employers believe. In the event of a reported workplace injury, employers should take the following steps to minimize the risk of discrimination, retaliation and other employment claims.

1. Report the injury

Once an employee reports a workplace injury, the employer is required to report the claim to its insurer within five days. Note, it is not the employer鈥檚 job to evaluate the legitimacy of a claim. Instead, if there is reason to question the claim, provide this information to the insurer. Employers report workers鈥� compensation claims on Form 801, and then the insurer will determine whether to accept or deny the claim. The insurer may work with the employer to investigate the circumstances surrounding the injury and make an informed decision about whether to accept or deny the claim.

2. Provide modified duty if suitable and available

If the insurer accepts the claim, the employer鈥檚 next steps will depend on the employee鈥檚 medical restrictions, as determined by the employee鈥檚 attending physician. The attending physician will complete a work release indicating if the employee can return to work and specifying any restrictions that apply. Employers are required to provide modified duty if suitable and available. This means employers should provide work within employees鈥� work restrictions, but employers are not required to create new positions or new work assignments if they do not exist. Further, if the employer does have suitable modified duty work available, the employer should offer the modified duty position to the employee in writing, as this may impact the employee鈥檚 reinstatement rights.

3. Consider the employee鈥檚 rights

The insurer will monitor the employee鈥檚 treatment and recovery to process the claim to closure or settle the claim with the employee. In some circumstances, insurers may settle claims on a global basis, which would include an employment release. Otherwise, employers should consider employees鈥� re-employment and reinstatement rights.

An employer with six or more employees may be required to re-employ an injured employee once he or she is released to work by the attending physician. This means an employee who has sustained a compensable injury and is disabled from performing the duties of the worker鈥檚 former regular employment is generally entitled to be reemployed by the employer for other work that is available and suitable.

Similarly, employees who work for employers with more than 20 employees may be entitled to reinstatement if released to their pre-injury job by their attending physicians. An employee can return to his or her former position of employment upon demand for reinstatement, regardless of whether the employer filled the position with a replacement while the employee was out.

An employee鈥檚 right to re-employment or reinstatement terminates in certain circumstances. For example, if the attending physician determines the employee cannot return to the former position (or any position with the employer for re-employment), the employee is no longer entitled to re-employment or reinstatement. The employee also loses re-employment and reinstatement rights if the employee is eligible and participates in vocational assistance, accepts suitable employment with another employer after becoming medically stationary, refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary, fails to request re-employment or reinstatement within seven days of being notified by the insurer or self-insured employer by certified mail that the attending physician or nurse practitioner authorized to provide compensable medical services has released the employee for employment, or three years have elapsed since the date of injury.

4. Assess the risk of employment claims

Employers should be cautious about terminating employees shortly after they have filed workers鈥� compensation claims, particularly if the nondiscriminatory reason for the termination is not abundantly clear. Oregon law prohibits discrimination against a worker with respect to hire, tenure, or any other terms of employment because the worker has applied for benefits or invoked the workers鈥� compensation system. Note, the employee could bring a discrimination/retaliation claim even if the workers鈥� compensation claim was denied.

Further, employers should consider the potential overlap with the Americans with Disabilities Act (ADA), the Oregon Family Leave Act (OFLA), and the federal Family and Medical Leave Act (FMLA). A disabling compensable injury may also be considered a 鈥渟erious health condition鈥� under OFLA and FMLA or may be considered a 鈥渄isability鈥� under the ADA. Employers may need to take additional steps to ensure compliance. For example, if the injury results in a disability under the ADA, the employer must engage in the interactive process and provide reasonable accommodations unless it would impose an undue hardship.

Each situation is unique, and an employer evaluating how to move forward after a workplace injury should reach out to counsel for assistance with compliance and performance of a thorough risk analysis.

Heather Fossity is an attorney at Barran Liebman LLP. She defends employers and management in a variety of employment matters, while serving as proactive counsel. Contact her at 503-276-2151 or [email protected].