Q. One of our employees is over age 70 and has had a broken foot, memory problems and a recent car wreck that caused some residual problems. Should we allow her to work? What can we do (if anything) to protect ourselves from potential workers' comp claims should she injure herself? —T.B., Georgia
A. Based on your question, I'm going to make the assumption that this older employee's job performance is unsatisfactory. You don't have to tolerate any employees', regardless of their age. You can discipline older or disabled employees for poor performance so long as you would impose the same discipline on any other employee.
In discrimination cases, the key to minimizing liability is good disciplinary documentation (i.e., documentation that is timely and specific). As far as protecting yourself from workers' comp claims, consider adopting an across-the-board policy that requires employees to obtain a return-to-work certification from a physician whenever they're out of work due to a medical condition for more than a certain amount of time (e.g., five or 10 consecutive workdays).
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