FMLA Claim

Elizabetharess

...Ex-employee files a complaint with the state claiming we denied him FML protection. The ee was fired last year outside of any HR input by a director who quit right after firing the ee. When I finally investigated the claim, I was very uncomfortable with the firing. The ee filed the complaint late with the state and we are awaiting the ee's appeal from the original determination that was in our favor (by the state due to an untimely filing). I think we stand a good chance of the ruling going in our favor because although the emploee was ill there were some days he communicated with the faility during the 30 days which shows he was not completey incapacitated so should have filed the complaint within the state required 30 days from the event as reguired. All that said, I am very worried about the FED FMLA. After all is said and done the Director failed to offer him FML. Even though he did not ask for it and we have posters up, all information I can gather shows that the courts are not easy on the er in cases like this. I am in contact with our attorney and we are going to really dig into this one.
I have spoken with the VP to let her know that I would be very uncomfortable if the ex files a Fed level FML Complaint and how that could go.
We are going to discuss settlement options-Who has had to deal with anything like this? If the ee files at the Fed level and if the Feds side in his favor, what might we expect? I know these cases can take years so what if they made us pay back wages-how does that work? I have never felt that we stand a chance of losing any cases in the past and frankly I have never lost a complaint. Attorneys can navigate the "wherefores" and "therefores" but I need some first hand experience stories with this.
Elizabeth

Myrna Minkoff

The FMLA is modeled after the FLSA so damages are generally limited to two times back pay. Back pay is generally measured from the date of termination until the time a judgment is entered. Because litigation can take so long, this amount can add up quickly. Plus, the FMLA also has an attorneys' fees provision. You may want to talk to your attorney about making an unconditional offer of reinstatement in order to cut off back pay.

Elizabetharess

Thank you and that is what I have discussed with the VP of the operation. Additional circumstance that has been brought to light; the ex has a rare disease that can turn into something worse that can infect others. Without naming the Virus we are now concerned about resident safety. Any knowledge on how we bring the person back but limit his access to staff and residents and remain confidential about his illness????

SMace

You should have the option to reinstate them with back pay.

I think you are jumping the gun with this virus thing. Where did you hear this? Are you sure it's true? If it's HIV you are going to have another lawsuit on your hands unless it's a job requirement to share needles or have unprotected sex with staff and residents.

Elizabetharess

It is a fact not gossip. It was in the investigation that medical records were released to us.
So you are saying that a person with a virus such as HIV cannot be restricted from working around people that he has to lift and clean?
Thanks for the help, this is a new one for me and I really appreciate the feedback.
Elizabeth

joannie

Sounds like your FMLA problem may also become an ADA problem. Here lately, all we are hearing is that an EE does not have to be disabled under the ADA, but the ER perceiving the ee is disabled can make it so. Good Luck!

Myrna Minkoff

HIV is the only condition that I know of that is a per se disability under the ADA. You want to be careful not to make any assumptions about his condition and what he can and cannot do.

Elizabetharess

Well it is HIV so we will proceed very cautiously. Any other information on this would be greatly appreciated.
Thanks

Jonathan Mook

One point of information. Being HIV positive is not necessarily a "disability" under the ADA. It depends upon whether the HIV virus substantially limits the person's major life activities. I would still proceed with caution, however.

Elizabetharess

Boy what a can of worms. Thanks everyone for the input and please continue to throw in information and feedback.
Elizabeth

Elizabetharess

Question number 2: The person had insurance. I sent COBRA information but he did not respond. IF he is reemployed does anyone know how terminated benefits works in these cases. This one really concerns me.
Thanks

NaeNae55

If you re-employ him, won't it be retroactive? Won't it be like he never left? That is what is usually done in these cases. If so, then his insurance should be reinstated in the same way.

If you don't make the date retroactive, then how do you normall treat re-hires?

Nae

SMace

However, if you perceive it is a disability by not allowing them to do certain work, you are on the hook.

Elizabeth, I'm sure you guys have BB pathogen training if you are "cleaning" people. If you take Universal Precautions the HIV issue is a moot point.

Elizabetharess

Yes, you are right we do take Universal Precuations.
Thanks
Elizabeth

Myrna Minkoff

I don't think that is correct. There is a presumption under the ADA that someone with HIV is substantially limited in a major life activity. I would recommend that you review the DOJ's Q&A on the ADA and Persons with HIV/AIDs. It states that:

Q: Are people with HIV or AIDS protected by the ADA?

A: Yes. An individual is considered to have a "disability" if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons with HIV disease, both symptomatic and symptomatic, have physical impairments that substantially limit one or more major life activities and are, therefore, protected by the law.

[url]http://www.ada.gov/pubs/hivqanda.txt[/url]

Elizabetharess

Thank you for the information.
Elizabeth

Elizabetharess

I have a what if question. What if the employee got a job for a brief period of time and then got fired and then filed the complaint. He says he was unable to file a complaint due to illness but come to find out he took another job and couldn't hold it down. If it was determined that he was denied his FML rights at point of termination but it was found out that he had the other job can the Feds demand that he be given his old job back? How would they track back pay? It just gets stranger and stranger. Does anyone have experience with this kind of case??