FMLA/Worker's Comp

CCH1400

We have an employee who has been out on FMLA with a worker's comp injury. He came by with some paperwork and indicated "he had never been told that FMLA and Worker's Comp run concurrently". His initial letter from us told him that his absence counted toward his FMLA entitlement and that he would not be able to substitute paid leave since he would be collecting worker's comp. I think he may try to make an issue out of this since he has exhausted his FMLA leave and cannot return to work without restriction. Our policy is to terminate when FMLA is exhausted and tell them they can reapply once they can return to work without restriction. No "light duty" is available. Does this sound like it could be an issue for us? Any thoughts would be appreciated.

System

If your policy is to terminate when FML is exhausted and you have followed it consistently, he may not like it but you can term on that basis. As long as you don't have any other reason for the termination that would look like discrimination or retaliation, you shouldn't have a problem.

SMace

I guess he did not fill out FMLA paperwork? That is one "i" I would like dotted before I termed.

The problem I see is that he is also out on WC. He ran out of FMLA, yes, but don't forget about the WC law. Does your WC law allow you to terminate someone out of work due to a work injury? Some states do not and I would be surprised if CT does. If I were you I would run this situation across a competent attorney or at least your WC carrier.

It sounds like he is talking to someone knowledgeable about FMLA and I would be very reluctant to terminate without a competent attorney helping to make sure your ducks are in a row.

CCH1400

I've been away so I haven't been able to respond.

Yes, he did complete all the FMLA paperwork.

I sent him a letter two weeks before his FMLA was up telling him that he had to return to work on August 27 without restrictions. The one sentence that was not in the letter was that our policy is to terminate at the end of the 16 weeks. Do you think leaving out that sentence will cause us a problem?

Thanks for your feedback.

SMace

It could. Does your handbook have the policy in it and did he sign a handbook acknowledgement? If so that can help you. Keep in mind that he can try to sue you even if your ducks are in a row.

As smoll said if it is your policy to terminate and you are consistent with it you should terminate.

The issues that make me worry are:

1. Your WC laws. In some states it is illegal to fire someone out on WC.
2. Once you fire someone who is out on WC, they have very little incentive to come back to work. Why should they if they keep drawing pay?

I am not an attorney and this is not legal advice. I strongly suggest you run this by a competent attorney to make sure you haven't missed anything.