Forums
Work Comp/FMLA
Legal Forum
Work Comp/FMLA
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
We have an employee that was out for a workers comp. incident for 8 months but then released back to work with no restrictions. She then decided she needed to get a knee surgery done and requested Sho
0
Cat:Topic ForumsForum:ForumId54
Cat:Topic ForumsForum:ForumId54Discussion:DiscussionId36051
Forums » Topic Forums » Legal Forum » Work Comp/FMLA
|
Work Comp/FMLA
posted at 8/13/2009 4:18 AM EDT
|
Posts: 81
First: 4/27/2004 Last: 2/22/2010 |
We have an employee that was out for a workers comp. incident for 8 months but then released back to work with no restrictions. She then decided she needed to get a knee surgery done and requested Short Term Disability and has now been out for her full FMLA covered 12 weeks. She is not going to be able to be released to work att his point without major restrictions in which we cannot accomodate. Can we terminate her since she no longer has job protection under FMLA? |
|
|
Work Comp/FMLA
posted at 8/13/2009 4:56 AM EDT
|
|
Posts: 1771
First: 10/24/2002 Last: 9/14/2011 |
Was the knee surgery related to the workers' comp injury? Why do you suggest the knee surgery was elective and not necessarily medically necessary? (Sorry, I'm having a hard time wrapping my brain around this...I've heard of people deciding they want cosmetic surgery, but knee surgery?) |
|
|
Work Comp/FMLA
posted at 8/13/2009 5:41 AM EDT
|
|
Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
And if she was out for 8 months with workers compensation, how was she even eligible for another 12 weeks for FMLA? Do you not run FMLA concurrent with WC absences? Even if you don't, did she work 1250 hours in the previous 12 months? That would be hard to do if she was out for 8.
If the knee surgery had nothing to do with the WC claim, then yes, I would terminate her employment if she can not be released to full duty. However, if it is related to the WC claim, I would check with your insurance carrier, broker and corporate counsel to make sure this wouldn't be seen as retaliation for using a protected benefit (WC and possibly FMLA). |
|
|
Work Comp/FMLA
posted at 8/13/2009 6:11 AM EDT
|
|
Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
Take a step back and lets start again.
I'll start with a lesson; this is where if other wise eligible you should combine FMLA with WC leave. Too late for now but next time. How long ago did this persons FMLA protection end? How long have you known what the "accomodation" was and why can't you accomodate it? Is it possible that following the knee surgery the restrictions/disability qualifies under the ADA? Have you already been granting the accomodation? (If so you are probably stuck with it). If the persons FMLA recently ended you could run the risk of being accused of retaliation, especially if comments like you have made in your posting (reasonably innocent I might add) were made to or otherwise communicated to the employee. If you can't accomodate the restrictions and it is not related to the WC injury, and the reason for not being able to is legitimate (not that you don't want to, not that it isn't fair to others, not that it costs money) then you may be okay. If you are as uncertain about what to do as you seem my advice is to seek input from competent legal authority and/or your WC carrier, as appropriate. |
|
|
Work Comp/FMLA
posted at 8/13/2009 11:42 AM EDT
|
|
Posts: 81
First: 4/27/2004 Last: 2/22/2010 |
The knee surgery was not a part of the workers comp. claim. She medically needed the knee surgery and her doctor wanted to do it as soon as she was released from work comp.
We do not run FMLA with WC but yes lesson learned, thank you. We are not aware of what her restrictions will be at this point. I am waiting to hear from her and get her doctors note but the last I spoke to her she was in pain still and did not assume she would be released by her expected return date of August 13, 2009 which was also the last day of her FMLA coverage(today). We will absolutely accomidate her if it is something we can do without causing undue hardship to the company. I guess I should probably get legal assistance once I get her doctors note. Thanks to everyone! |
Forums » Topic Forums » Legal Forum » Work Comp/FMLA
