WC Termination?? When?

isavvy

Hi, I'm new to the forum. I work for a company that has 2 limited partnerships working under an umbrella name. These 2 partnerships together have 46 employees, so we are not subject to FMLA. However, the managing partner of the 2 limited partnerships also has a small inc. company of his own that is also covered by our insurance. They have 6 employees. Would these 6 employees be counted along with the other 46 who work under the umbrella name, which would then make us subject to FLMA rules? Here's the problem - we have an employee out on disability due a work related injury. He has been out 10 weeks and the doctor handling the case has no idea of when he might possibly be released for work. Even if FMLA applied, he would only have 2 more weeks and we could terminate, but since this is a comp claim, do we have to keep him employed any longer? Is there a certain amount of time we are required to keep this ee?

marc

I think you are looking at a rather in depth analysis to determine whether or not FML applies to the three companies you introduced and the associated 52 EEs.

To start with, you should talk to an Attorney who has some depth in the FML field.

On the face of it, you mentioned three separate companies, which ordinarily would mean the companies and EEs are not eligible for FML, however, you introduced some complexity that may force you to live under the FMLA umbrella.

First, you indicated that 46 of the EEs are operating under the same umbrella name and that the other 6 EEs are covered by the same insurance. Do you also pay them from the same payroll accounts and cover them with one employee handbook?

These are the types of things that might give the EEs the impression that they are all one company, which could have an impact if an investigation were launched following a complaint of abuse of FML rights.

You can see that this is a question that could have some significant exposure for your company and should therefore be answered by someone that has a stake in the answer. By that, I mean - you pay for the advice and they put their malpractice insurance policy at risk for the answer. Not being cynical, but any answer given by us has no consequence for us if it is wrong.

If you are subject to FML, it sounds like you have not jumped through any of the hoops to certify the leave as qualifying. I would not start jumping through them until you talked to an attorney as acting like you have to comply might force you into the box you don't want to be in.

pork1

IASWY: Welcome to the HR Forum, glad you asked: In workers's compensation claims there is no limit of time; however, we all push to get the ee back to work in some configuration, as soon as possible. My current employer does not terminate a W/C employee until the physician has stamped the ee as meeting the criteria for "maximum medical improvement", which then if the limitations are such that the company can not afford for the ee to participate under his current state of being. Then the company must determine if the ee is disqualified by a medical condition with limitations. If so then terminate and prepare to defend your actions and ultimate claims by the ee's attorney of sever damage to this ee and deserving of great sums of monry. We have a case still working to day and we terminated his employment back in the year 2000. My point being if you are doing what is right for the company and the ee then stand up and be counted. Once a worker has been declared medically disabled by a physician then a chain of events began to play and your good faith effort to support the ee should prevail. Once totally disabled the ee might or could be entitled to SSI disability, but it will not start until he/she has been out of work for at least 6 months. The longer a company holds on to the ee the longer the time required to qualify and get started in the receipt of disability and medicare.

Our company does not run FMLA concurrently but we should, however, the owners have said NO. However, we have never been asked by any employee to run FMLA at the same time or to return to work only to go back out on FMLA. It could happen but it just has not happened.

Bottom line do not terminate at the end of some given amount of time, only when the physician has made the determination that one's health makes the person un-suitable to work in your industry.

PORK