Work Comp, Cobra, FMLA, RIF what a mess!

HR in Okla

I have a complicated situation involving work comp, COBRA, FMLA and a RIF.

Bottom line: Employee is mediocre performer, off now for a month on doctor's orders due to Work comp situation, still in COBRA election period due to reduction in hours during RIF in May. I also sent her an FMLA notice when she said she had to be off a month. (We would have RIFed her except for the on-going Work Comp claim. Instead we let two others go who had less seniority in the department and kept her on part-time. The remaining full-time people had hours reduced also, but not enough to lose benefits.)

Meanwhile, we called one of the RIFed people back to fill the slot during the month off. She wants assurance that she can keep the job at the end of the month. Help! We may be able to keep both of them for a very short time. What can I do with a sub-par performer, who is also a mega whiner with an attorney, and has a WC claim in process?

Don't suggest a transfer, she's already in her third successively less physical position since the original injury over a year ago.

Appreciate any help you have.

Pork

HR in OKLA: To unravel this puzzle I would start with the FMLA/WC impacts. "if, but for being on leave, an employee would have been laid off, the employee's right to reinstatement is whatever it would have been had the employee not been on leave when the layoff (RIF) occurred". This , of course, ASSUMES (ASS OUT OF YOU AND ME)that the position previously assigned is trully no longer required. Then consider the qualifications of the individual and the experience achieved with good documentation of the performance issues including a good set of warnings and obvious performance direction prior to the W/C/FMLA issues.

AN EMPLOYER THAT ELIMINATES THE JOB OF AN EMPLOYEE WHO TAKES FMLA (LIKEWISE WORKER'S COMP)MUST BEAR THE BURDEN OF ESTABLISHING THAT THE JOB (job task), AND THE EMPLOYEE WOULD NOT OTHERWISE, HAVE BEEN EMPLOYED AT THE TIME OF RESTORATION, IF THE EMPLOYEE HAD CONTINUED TO WORK INSTEAD OF TAKING A LEAVE OR BEEN AWAY, AS A RESULT OF AN INJURY.

It would be a prohibited act to refuse to place an employee in the same position because the employee was on (FMLA or W/C) leave, when in fact the work job task had been simply redistributed.

Your posting reads like there may have been some simple redistribution of job task rather than a clean cancellation of the work task for business reasons. In the military a RIF action eliminates whole units or types of occupations/vocations, the water purification unit is no longer required because the army outsources that type of function, thus, assigned specialist in water purfication get RIFed and they are discharged and can join the National Guard or the Reserve Forces. Does your situation/position present itself something like this; if so terminate the employee and fight the "attorney DAWGs", and be proud of your actions. If not read on!

Step one: Review the performance record past and current.
Step two: Review the RIF action.
Step three: Review physical medical qualifications of the individual.
Step four: Regrade the qualifications of the concerned "whiner" against honest work task and the physical ability to do work of any kind.
Step five: Review the additude of all leaders that have been involved with this person past, now, and future behaviors.
Step six: Find a home for this "whiner", the money spent is a cause of doing business in the long run.
Step seven: get all leaders including yourself, in line for sensitivity training, whiners must be dealt with before the fact, and not after the fact.
Step eight: Restart the necessary documentation and development of the concerned ee and
Step nine: Progressively, make the calls on performance issues, when it is required and not after another employee gets HR all tied up with few options.
Step Ten: Call a spade, a spade and let the chips fall where they may, honestly.

WELCOME TO THE SUCCESS OF PORK!
Step

HR in Okla

The RIF did not eliminate the whole department or all positions. We reduced the number of total hours worked in the department which reduced several people from 38-40 hours to 30, completely cut two positions and cut the work comp person back to 25 hours. This is an assisted living facility and certain areas require more hours of staffing because of resident needs, thus more hours are needed where resident needs are greater. The person in question is working in an area with higher functioning people who don't need as many hours of activities.

She was actively at work at the time of the reduction in hours, but has been on light duty. Now because there is no one else working on the shift to help her, the doctor has said she can't work at all. That's where I am today. I had to re-hire someone while she's off...someone who is a much better performer.

But what can I do in a month when she wants to come back? Can you terminate someone on work comp for poor performance? That's what it boils down to. I know, document, document.

LindaS

Before making any decisions regarding termination, speak with your legal counsel and go through whatever documentation you have verifying their poor performance to date. Make sure the "poor performance" is not as a result of her work injury. If you have "all your ducks in a row", and your attorney agrees, you can go ahead and terminated. Neither FMLA nor Worker's Comp. force an employer to keep an employee who was not doing their job properly in the first place. Just remember, you will probably be faced with some type of discrimination claim which is why you need to be sure you have a proper paper trail to justify why the decision was made to terminate.

Don D

All I had to hear was that she's a superachiever with the attorneys to advise you to call your legal counsel right away. And all I needed to hear was that she 'is a poor performer' to click a lightbulb on in my head that tells me you are waaaaay too late to be bringing that issue up at this particular point in time. Poor performance must be dealt with timely, not after the fact when you are entwined in comp, FMLA and RIF issues. Her attorney will love it.

HR in Okla

[font size="1" color="#FF0000"]LAST EDITED ON 07-01-03 AT 08:28AM (CST)[/font][p]That's why I'm asking for help, I know it's really late. Actually, she had been a decent performer in the previous positions. It has been just recently that her performance has declined. Yes, the surgery she had, limitations and medication are probably factors. But her attitude has become so bad that the residents she is supposed to be motivating don't want to be around her. They won't come out of their rooms for the activities she is supposed to be leading. Defeats the point of the job, doesn't it.

Moot point right now. She is off for a month, we have replaced her for now and will deal with the issues when she returns. Hopefully, she'll be able to function after some additional time off. (Coincidentally, a family member is hospitalized and we have heard through our magnificent grapevine that "she took leave so she could be at the hospital."