Can we fire???

bbarrett

I have an employee who was out on workmans comp from april-july. We do not have anything in our policy about WC and FMLA running concurrent (fixing that). He is back but has been on light duty since 07/21 and may need another surgery. Needless to say he is taking headcount from our warehouse.

Can we let him go and just take the hit with our workmans comp costs. Since we did not put him out on FMLA and if we had he would have already exhausted his 12 weeks. What can we do. We are in texas and are an at will state?

Any help would be great.

Sunny

I think you are still required to give him his 12 weeks of FMLA - just because your policy doesn't run it concurrently with WC doesn't mean he is not entitled to it. Then when he has exhausted FMLA and you don't have a position he can function in with or without accommodation (in case he falls under ADA) you can terminate. You will probably want to consult your labor attorney on this one - before you terminate.

sonny

I agree with Sunny assuming he qualifies for FMLA

Pork

BBARRETT: You can terminate your employee/employer relationship for any reason or no reason at all. Question is can your company defend your actions when he chooses to fight for a "wrongful discharge because he filed and is covered under worker's comp? From your words,I would guess no. We have one person currently out on WC and we do not have light duty for this person she is claiming and undergoing surgery and treatment for corporal tunnel. She want be back but we will not terminate until we have a medical determination by a physician that says she is "medically disqualified" to work in our industry. The operations folks don't like it but that is the only way I can keep my company from doing the "right thing at the wrong time".

PORK

Don D

In my opinion, the DOL would not require you to have given him an additional 12 weeks of FMLA, following that many weeks off under comp, since the intention of the Act has been met, that of giving him 12 weeks already, just not designating it. I think I've read that court rulings have held that it won't be required that you give him more than the law intended, which he apparently has gotten. In Mississippi, there is no such thing as workers comp retaliation and one can be terminated while out on comp. It may not make good sense always, but it is not illegal in this state. FMLA is a job protection statute. Comp is not. I agree that you should talk to your attorney before terminating.

Pork

[font size="1" color="#FF0000"]LAST EDITED ON 08-19-03 AT 04:48PM (CST)[/font][p]"Dandy Don" some times you are just to picky. Yes you can terminate while on W/C; however, almost every employee can find a way to be considered as a protected class employee in some form or fashion, thus it is always to be considered "what is my (the company's) motivation for terminating, and if the system can pin a tail on the "donkey or hog" they will and oh does it hurt when we are caught doing "the right thing at the wrong time".

Dandy Don you mentioned PECO's action in another posting, what you want to bet there will be RICHARD AND HIS GANG OF "ATTORNEY DAWGS" ALL OVER THE EEs AND THE COMPANY IN A VERY SHORT PERIOD OF TIME. ANOTHER CASE OF DOING THE "RIGHT THING AT THE WRONG".

MAY WE ALL HAVE ANOTHER BLESSED DAY AND CAPTURE SADDAM HUSSAIN AND OSMA BIN LADEN TOMORROW!

PORK

Oh is it ok to give blessings or bestow blessings on this channel?

System

Pork: Hello. I must stand up for my twin brother. What's 'picky' about quoting the law or informing others what it is? The lady's question was could she fire him, not what ramifications it might have. Richard is an automobile accident personal liability lawyer in your fair capitol city. He ain't gonna get interested in the measely proceeds from the firing of 200 illegals. Small potatoes.

sonny

Really Pork, I think Don was being less picky than Sunny and I. I agree with Don in that certainly the intent was met and have read some where about the court rulings. I was just thinking "CYA" and down the road, it would look favorably on employer that they had given this guy every break.

I don't know about anyone else but I take every blessing I can get.

Pork

SONNY AND "DANDY DON'S TWIN": Good morning and may we all start this beautiful day out with a smile in our hearts and on our faces for all who need a warm HR greeting and Blessing! RICHARD SW______ as a team of about 200 associates and they are into anything and every thing that has potential for $$$$$s. The PECO situation is certainly fair game for any bank of new "Ole Rebel graduates" who need the time on the streets producing potential settlement cases. PECO example is just one of those. We happen to be under attack by one of his hinchmen from Tupelo,MS, but we have a good solid case so I have not even referred it to our retained attorney. My opening statement to the post was very clear (Terminate for no reason or any reason, but just realize and search the company heart for the real reason and intent). Secondly, I happen to be very conservative and a real people person that is always concerned for the individual and family hurt pain and suffering. Under my leadership, the company will go to the limit as long as the General Manager and owners want me to lead guide and direct. We have enough legal cases to mess with from the operations side, my boss/owners want me to keep the HR side legal slate as clean as possible. Before I put us out to dry, I make sure our underwear is clean and white as snow. Yesterday our President flew in plane in for a visit and he and I with the General manager talked over all of the cases on board; he then covered 2 cases that hit our South Carolina dividion and sought my understanding of the procedures & policy. Keep us out of court by following our published policy and procedures, but be fair to the employee as much as we can possibly stand without setting new precedence on "how we act to cases"!

Grab your blessings and smell the goodness they bring!

PORK

scottorr

[font size="1" color="#FF0000"]LAST EDITED ON 08-20-03 AT 09:18AM (CST)[/font][p]Unfortunately the courts have recently said that it is your resposibilty to offer FMLA if you even notice something is wrong. If he refuses to take FMLA that is another story. They should have been running concurrently. He is still eligible. Sorry to bring you bad news. I read this in a legal briefing recently. If I can find it I will forward you the case number.

cthr

I didn't think that employees could "refuse" FMLA.

In regards to not having to offer an additional 12 weeks-the case was Ragsdale v Wolverine Wordlwide, Inc and the judges ruled-that if the leave allowed is more generous than the leave allowed under FMLA and the employee would not have chosen to take the time in different allotments under FMLA (ie:intermitten leave as opposed to the 12 consecutive weeks, the employer does not have to allow an additional 12 weeks.

As others have advised you should consult with your labor attorney first.

scottorr

Your right, employees can't refuse FMLA. What I should have said was if they try to refuse. But if you never notified the ee you were giving FMLA concurrently or at all, you may want to be careful. Some courts are saying notice needs to be given. Definately consult an attorney if you are seriously considering termination.

Tony Kessler

Several state Employment Law Letters have been writing about the issue that scottorr brings up. In the newsletter archives on this website, do a search for "FMLA notice" for "All States." A short way down the list, you'll see a link to an August 2003 (how much more recent can you get?) Illinois Employment Law Letter article titled, "Dramatic change in behavior may be notice of need for FMLA leave." It's a Seventh Circuit case about an employee who kept falling asleep on the job. If you have trouble finding the article, let me know. tk

Tony Kessler, director of editorial
M. Lee Smith Publishers LLC
(615) 661-0249 ext. 8068