New York Workers Comp Leave

Kemp

Employee in New York injured his back on the job in Spring '03. Was on leave for 1 month after injury. Returned to job for 3 weeks and went back out on leave due to same injury. Here's the incredible part...the employee was left in "leave" status until his return to work in September 2005. He has now been back at work for about 3 weeks and has had to see the doctor twice for back pain. After visiting the doctor this morning, he is restricted to no more than 35 lbs lifting and no repetitive bending. We have no job in our plant that fits those restrictions.

I have inherited this mess due to corporate merger. I didn't know the employee existed until about 15 minutes ago. I would like to terminate employment because we do not have a job that will fit his restrictions. Can someone with knowledge of New York law give me some direction?

Thanks so much.

SMace

[font size="1" color="#FF0000"]LAST EDITED ON 10-24-05 AT 02:35PM (CST)[/font][br][br]You should call your claims person and your attorney. New York is the CA of the east when it comes to WC. I can't guarantee you are wrong, but I would never fire them in this situation.

Anyway, what would you gain? They would still be out of work drawing comp. Firing them does not absolve you from WC liability.

Why not put them on restricted duty? Sitting on a chair doing basically nothing can be a very good incentive for getting someone back to full duty.

Whatever

You need to consult an attorney. We terminate all employees after they have been out for 26 consecutive weeks. And, that has been written policy
for many, many years. However, you have given no indication of what company policy is or has been. If you have other ees who are still on leave after 2 1/2 years, 3 years etc., you would have a difficult time explaining why this ee was terminated and the others weren't.

Kemp

I don't think the company had many policies at the time this employee was injured. The company policy now is that employees are terminated after exhaustion of FMLA. We are very consistent in application of that policy.

We did have a situation that was almost identical to this. In one of the TN plants we had two employees who had been out due to WC injury for three to five years. (This was another inherited mess.) Both of those employees were still unable to return to work so we notified them of the FMLA policy, let them stay out 12 more weeks from that point and then terminated them. I would love to handle this situation the same way but, since it is NY, I am very, very cautious.