Legal Forum
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
Welcome to the Legal Forum. Before posting, you may want to look through past pages of this Forum to see if your question has been answered. Also, search the Research Center.
Please note that this forum is for workforce-management professionals only, and not for employees.
Posted: 2002-05-06 12:45
Can I let someone go while they are on workers comp and after they have exhausted their FMLA? Thanks
Forum Hosts Legal Forum Host
Joined: Dec 20, 2001 Posts: 521
Posted: 2002-05-07 05:24
Ah, such an easy question! Of course you can! Wait, wait - The issue is will your company get sued because you do so.
As we have written in this space many times, an employer can terminate an employee for a good reason, a bad reason or no reason at all, so long as it is not an illegal reason or in breach of a contract. Here are some things to consider when considering the termination of an employee on workers compensation.
1. FMLA - You wrote that this employee exhausted leave under the FMLA. Great. What about any state FMLA? Make sure you comply with both.
2. ADA - The EEOC has taken the position that a short term, fixed duration unpaid leave may be a reasonable accommodation under the ADA. If the ADA covers the person, you should consider the possibility that your company may be obligated to provide "super-FMLA leave." Of course, consider any state ADA overlays as well.
3. Workers Compensation - All state workers compensation statutes have a provision prohibiting retaliation for exercising rights under the workers compensation statute. Many states once held the view that the termination of a person on workers compensation (especially if the termination was due to excess absenteeism) was a violation of these anti-retaliation provisions. Most states (at least, I hope it is "most") have subsequently rejected this interpretation of the statute. If yours has not done so, well . . . .
4. Contract breach - look to see whether your company is a party to a contract which provides for some right to return to a job after workers compensation or some right to paid or unpaid leave over and above what FMLA requires. A contract can be (depending on the state) written or oral, unilateral or bilateral, express or implied. Also, make sure there is no union contract covering these issues.
Your best bet would be to consult with your favorite labor and employment relations attorney.
dwlawrence
Joined: Sep 25, 2003 Posts: 1
Posted: 2003-09-25 14:56
May I terminate an employee who is in jail?
nork3
Joined: Feb 12, 2002 Posts: 3876
Posted: 2003-09-25 15:47
Yes. There is no law affording guarantee of return to a job because of incarceration. In fact, almost every employer I know of considers this a voluntary termination of employment or job abandonment.
chriskrengel
Joined: Nov 21, 2001 Posts: 31
Posted: 2003-09-25 17:21
I'm in California and have an employee who used up his 12 week FMLA 11 months ago for surgery. He's been working off and on during the 11 month period; but seems to be more off than on due to lingering problems from his surgery. He's been released to work full-time, but can't seem to cut it. Will I be in trouble if I terminate him now? Also, in a couple of weeks, won't I have to offer him FMLA again?
ForumHosts Legal Forum Host
Joined: Jul 09, 2002 Posts: 825
Posted: 2003-09-26 06:40
I might give a bit more nuanced of an answer to "dwlawrence". Imagine the following: employee is arrested and incarcerated for 24 hours, missing one shift. S\he manages to call in before his shift, and takes vacation time, which he has in his bank. S/he is released and all charges are dropped. You fire the, and s/he sues. In some states (the claim would arise under state law, and the law varies depending on the state), the employee would have a decent claim here, depending on the strength of the evidence that the reason for the termination was the fact of the arrest.
The Business of Management
Workforce Management editor John Hollon analyzes and comments on business, management and the art of leading a workforce.
Workforce Washington
Washington staff writer Mark Schoeff Jr. provides an insiders insights to the workings of our nations capital from the workforce management perspective.
Global Work Watch
Staff writer Ed Frauenheim blogs about how companies worldwide marshal and manage their workers.
= Member Only
Posted: 2002-05-06 12:45 
