Anybody out There? Can we Layoff an Employee on Light Duty - Worker's Compensation?
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Hello,<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
I am the HR Manager- Head of Department for a company in <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />VA.
We are planning a layoff within the next two weeks. One of the employees chosen for layoff is on light duty for a Worker's Compensation ailment, which also qualifies for FMLA protections.
I am pretty clear about the FMLA side of things. I know that we could lay the person off if, absent his serious medical condition, he would be selected for layoff anyway.
However, I could find no similar termination guidelines dealing with WC. Do you know what our obligations are in this case? Are we able to include this employee in the layoff?
FYI: I have not touched the subject of ADA as his ailment will not qualify for ADA protections even with the amended definitions of: disability, significantly limited, mitigating measures, or regarded as disabled.
Please help.
Comments
The same would apply for WC, however, you are right to be concerned about a lay off of an employee out on WC. Consult your attorney. We had a similar situation having to term an employee for cause while on WC. We still had to follow thorugh with the WC requirements but did not have to preserve a position for the employee. No law requires employers to give special treatment to employees just because they're on workers' comp leave. An employee can be included in a reduction in workforce if the employer picked the employee for some reason other than the fact that the employee was on workers' comp at the time.
Thanks for the answer. I thought as much, did the research, and just figured that if there was anything else hanging out there, one of you HR pros would know. Thanks again.
I can understand your concern with regard to this matter, as they are very tricky. Having a full understanding of your companies culture (relationship between EEs and ER), your leaderships teams approach to dealing with EES (especially those on WC) and your general policy/approach on lying off employees (is it perceived to be a way to get “ride” of people) are very critical as you determine the amount of liability that can be perceived as retaliation for the EE exercising their right to WC. Perhaps it's too late, but when I have a vexing issue, I consult with my WC carrier for I rely on their expertise and experience. I sometime require them to take particular issues to their attorneys, which has been very helpful. Also, when making the determination to layoff the EE, I would consider the work ethic and truthfulness of the EE and the claim. If the employee is valuable and you believe it's a legitimate claim, then you are not as inclined to experience any problems with the claim closing after successful completion of his/her ailments. However, if you find it to be suspicious, then you are forfeiting your ability to "demand" that he/she return to work after having a successful recovery/IME. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Therefore I would consider the two factors:
1. What percentage of risk will I assume for this being perceived as retaliation, and am I willing to take that risk?
2. What risk is there in this WC claim remaining open for too long or possibly going to a settlement, as of course, am I willing to take that risk?
Hope this was helpful!
Thanks Heather,
Our layoff formula is standard across the company. Deciphering the authenticity of WC claims is not one of the criteria being considered at all, as it could be deemed retaliatory. If I felt that someone's claim might be fraudulent, I would employ my regular due diligence to investigating and then applying discipline wherever warranted. The employee in question is being assessed for layoff by the layoff formula that is standard company-wide. The person just happens to have a WC claim and so I'm dotting the I's and crossing the T's. Thanks for your assistance. It was very timely, and much needed.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Hello HR Lady,
Please allow me to explain the intent of my recommendations of consideration.
First:
The employee in question is being assessed for layoff by the layoff formula that is standard company-wide.
I have been brought in on the leading team to change the culture, from being contentious and adversarial to being a true partnership focused on quality, safety, performance with a harmonious and amicable environment between employee and employer interactions to maximize productivity and the team spirit at several facilities in my HR experience. Under normal circumstances, we all know that reality is not reality, but rather that “perception of reality” is really reality, therefore while the employee’s perception/culture was one of distrust, I analyzed all critical decisions to ascertain the “effect” it would have on their perception. With that being said, every decision was made to meet the current business demands while being very meticulous to the impact it would have on further and continued development of the organization, culture and legal ramifications. Therefore, I strongly urged you to consider if the employees perceive your company to have a general retalitory nature.
But from the information that you provided that your company has a set formula which is tried and true and you do not have a bitter relationship between the EE and the ER, then you would NOT need to consider this aspect during your decision for the risk factor would be generally low. Unless there is a circumstance to which I have not been made aware.
Secondly:
Deciphering the authenticity of WC claims is not one of the criteria being considered at all, as it could be deemed retaliatory. If I felt that someone's claim might be fraudulent, I would employ my regular due diligence to investigating and then applying discipline wherever warranted.
With respect to this aspect, I did not intent to imply that you should lay this EE off as a form of discipline for filing a suspicious claim; but rather I intended to imply that if this person has what you believe (based on facts) to be a suspicious claim then you should consider RETAINING the employee so that you can insure proper claims management until completion. In my WC experience, I have found the suspicious claims to have any number of impeding circumstances which prevented the timely and prompt return of the EE, so it was always necessary to partner with the WC carrier and utilize the companies Return-to-Work policy to effect that goal. Many of the suspicious claims were finalized when the EE refused to report to work when they were informed they needed to return by a particular date or they would be forfeiting their job based on medical information obtained in an IME or something of that nature. So my recommendation was for you to consider retaining this EE if you found the claim to be suspicious so that you could partner with the WC carrier to ensure a prompt return to work because as you are aware the longer the claim remains open the greater the probability that the costs will continue to grow and the more money will be allocated to the reserve ultimately leading to an additional increase in the WC premiums. So you might have saved some money by doing the layoff of this WC EE, but would you have saved money overall if these aspects were never considered?