Worker's Comp, FMLA, and retaliation?
catbertNC
5 Posts
I am "an army of one" and am looking for another opinion on this. Sorry that it's a little long...
We have 2 different employees who were injured on the job (different incidents). Employee 1 was injured in June of 2001 has not yet returned to work. At the time of the injury, Employee 1 was given an FMLA packet, which Employee 1 never returned. Because we knew that Employee was out for a personal medical condition that qualified under FMLA, we considered the leave FMLA. After Employee 1 exhausted FMLA time, I sent a letter stating that if additional time off work was still needed, Employee 1 would need to request a Personal Leave, which maxed at 12 additional weeks (6 months total). Although the company usually does not pay for the cost of employee benefits during personal leave, we made an exception for Employee 1, and continue to pay the cost of benefits. At this point, Employee 1's attorney contacted us, saying that we were retaliating against Employee 1 by classifying time as FMLA or Personal Leave in conjunction with a Work Comp claim. Employee 1 never requested additional leave time. Now the Personal Leave has expired, with no "return-to-work" date in sight. Employee 1 has not provided us with any information, other than copies of appointment cards listing the date and time of dr. appointments. Additionally, our company underwent restructuring and Employee 1's job title no longer exists (others also had the job title and are now in other positions).
1. Any legal landmines in terminating employment at this time?
2. It is my understanding that it is NOT retaliation to run FMLA or other leave programs in conjunction with a Work Comp claim. Correct?
Employee 2 was injured in December of 2001 and had been with the company for only 8 months at that time. Thus, Employee 2 did not qualify for FMLA or for Personal Leave. We have thusfar continued to pay the cost of benefits for Employee 2. Employee 2 has no forseeable return to work date at this time, either.
Problems with terminating Employee 2?
I have a letter from the NC DOL stating that facially neutral attendance policies are not construed as retaliatory if they result in the termination of an employee out due to WC injury.
Opinions, please?
We have 2 different employees who were injured on the job (different incidents). Employee 1 was injured in June of 2001 has not yet returned to work. At the time of the injury, Employee 1 was given an FMLA packet, which Employee 1 never returned. Because we knew that Employee was out for a personal medical condition that qualified under FMLA, we considered the leave FMLA. After Employee 1 exhausted FMLA time, I sent a letter stating that if additional time off work was still needed, Employee 1 would need to request a Personal Leave, which maxed at 12 additional weeks (6 months total). Although the company usually does not pay for the cost of employee benefits during personal leave, we made an exception for Employee 1, and continue to pay the cost of benefits. At this point, Employee 1's attorney contacted us, saying that we were retaliating against Employee 1 by classifying time as FMLA or Personal Leave in conjunction with a Work Comp claim. Employee 1 never requested additional leave time. Now the Personal Leave has expired, with no "return-to-work" date in sight. Employee 1 has not provided us with any information, other than copies of appointment cards listing the date and time of dr. appointments. Additionally, our company underwent restructuring and Employee 1's job title no longer exists (others also had the job title and are now in other positions).
1. Any legal landmines in terminating employment at this time?
2. It is my understanding that it is NOT retaliation to run FMLA or other leave programs in conjunction with a Work Comp claim. Correct?
Employee 2 was injured in December of 2001 and had been with the company for only 8 months at that time. Thus, Employee 2 did not qualify for FMLA or for Personal Leave. We have thusfar continued to pay the cost of benefits for Employee 2. Employee 2 has no forseeable return to work date at this time, either.
Problems with terminating Employee 2?
I have a letter from the NC DOL stating that facially neutral attendance policies are not construed as retaliatory if they result in the termination of an employee out due to WC injury.
Opinions, please?
Comments
But you really should contact an N.C. lawyer who knows workers' comp, especially since one of your employees has already hired one. Here's where you can find the lawyers who write our North Carolina Employment Law Letter:
[url]http://www.hrhero.com/findanattorney.shtml[/url]
Good luck.
James Sokolowski
Senior Editor
M. Lee Smith Publishers
But since the employee has gotten an attorney involved, so you can bet the employee will sue, I suggest that you run everything by an attorney in your state.
Godd Luck.