Qick Help on Term Please....

JM in ATL

Helping out a friend on this one. I could use some quick thinking and opinions on the pitfalls that could happen here.

Employee fell sick (litterally) at work.

Has been out for six weeks (virtigo) due to the illness.

Employee nor company qualifies for FMLA.

Employer now wants to term due to failure to perform job since DOH. Long story there.

Can someone help me with the potential problems this can bring up. This isn't a lay off or a RIF, it is a single term.

Thanks!

deniseE

I guess the harsh reality of this situation is that the employee is unable to do his job and the company still needs to have the job done.

The warm fuzzy parts of us want the employer to continue to cover this guy and get him back on his feet. The reality is that the employer can probably terminate him safely and then not fight the UC claim.

JM in ATL

My concern is that this wasn't filed as WC. My next concern is that the ee has been out for six weeks. This is obviously impairing on a life activity, so wouldn't his illness be covered by the ADA?

Also the company is a start up and does not have any insurance. So this person is at home, away from work with no STD, no medical insurance and no income from a WC claim.

I think this is a perfect case for legal consult.

deniseE

[font size="1" color="#FF0000"]LAST EDITED ON 10-10-03 AT 01:28PM (CST)[/font][p]It is a mess.

I agree...an attorney should be brought in to review the company's liability.

I think a settlement may be in everyone's best interest.

Balloonman

I hope denise is kidding...............let the person go..............did they show promise before falling ill? If so they may be eligible for rehire if you have openings. Remember just because you become sick at work, it does not automatically make it wc. Fire them, feel bad, get over it.
My $0.02 worth.
DJ The Balloonman

JM in ATL

It may not necessarily be WC, but what about ADA?

This person has a major life impairment, so if the employer fires them, isn't it possible that they could file and ADA suit?

I mean, there is nothing that could stop him per se, but do you see a leg to stand on with an ADA claim?

BTW - I just found out that they have been paying this person while out "sick". They have been paying him to stay in bed for SIX WEEKS! Yeah, I would be taking my time getting back to work as well.

I recommended that they spend a couple hundered dollars just to prevent having to spend thousands in the future. Especially since they don't have an HR to actually do the work on this.

Pork

JM in ATL: Why would becoming ill at work have anything to do with worker's Comp? Was there a hazardous air quality issue or chemical or stress designated by the physician as the direct cause of her illness?

Without FMLA and company direct support for disability, the harsh reality is that you should cancel your employer/employee relationship resulting from an obvious physician declaired medical disqualification. A medical disqualification gives your organization every right to cancel your relationship and put a closing remark in your wording of your letter to her that says politely that your organization must move on without you!!! Upon being declared physically qualified, we will give your application for re-hire positive consideration and will make ever effort to fit your skills and physical abilities back into our organization based on available positions that will fit your physical abilities at the time.

We at XYZ wish the best for your and hope to see you back within our organization soon.

Sincerely

JM in ATL DON'T FORGET THAT SOMETIMES OUR BEST COURSE OF ACTION FOR THE COMPANY AND THE SICK EE IS TO TERMINATE. THE SOONER THE TERMINATION THE SOONER THE EE CAN APPLY AND QUALIFY FOR SSA DISABILITY which is a heck of a lot more valuable than your companies' sympathy payments (if that is what you are doing), but even with you hanging on without termination the date for being unemployed has not started.

PORK

JM in ATL

Although the "sickness" may not qualify for WC, he fell down b/c of it. Which in turn means he could have been injured at work due to a fall. Now, it is my understanding that WC doesn't bear fault. So regardless if the fall was the workers fault or the comapny's fault, any injury which resulted due to the fall, wouldn't qualify for WC?

I've heard of people having heart attacks and getting WC. I'm not trying to be agrumentative, I'm just trying to look at this from several different angles. Angles an ee and a lawyer would look at.

Also your statement about filing for SS Disability, wouldn't that also put them in a position to file suit for termination b/c of a disability?

I don't disagree about the termination per se, I just want to be sure that this is thoroughly looked at and discussed b/c the ee is notoriously known for sueing.

Thankfully, this isn't my ee. I just got stuck in the middle b/c I am the only HR person that anyone knows at the company.

I guess now we will just have to wait and see. Thanks everyone!

Pork

The injury resulting from a fall in the work place would most likely be covered. I would discuss that aspect with my carrier and take their lead!

Yes and thus my remark of stress certified by ee's physician.

Once the ee's physician has made the determination that the ee is to sick to return to work in your industry, he has provided a medical disqualification in which the company is then obligated to take the next step and accept the medical disqualification and provide the ee with documentation letter of support with a termination notice.

The ee then takes your documentation and his physician's documentation to SSA and begins the process to apply for SSA disability for what ever reason.

Your medical responsibilities for the injury caused by the fall will remain current and continuous until the ee reaches MAXIMUM MEDICAL REPAIR. This too can be used by the ee to extra a greater amount of disability for the fall injury as may be pertinent to his physical condition which hampered hia ability to earn an income.

marc

I get all the concerns that have been expressed, I don't get why a WC claim wasn't immediately filed. In our state, it is supposed to be filed within 3 days, but if not filed within 90 days, it is closed out. But you do not really have a choice - you file the claim and let the WC people work out whether or not it is covered. You are already 6 weeks past due on this piece.

If you are worried about this being a lawsuit, spend a couple of bucks with your counsel to review the facts. This ee had 6 weeks of sick time built up or you are paying because ... why? I would stop that part right away, if it is some sort of time off with pay above and beyond your policy - it sure makes you look guilty of something.

Pork

MY CARRIER ALLOWS ME 5 DAYS AND HAS ALLOWED me more than that if one just slipped by and we in HR just found out a W/C situation happened when the doctor billed the ee and he gets concerned and calls to find out why!!!DUUUU. We have a termination clause in our handbook that allows for the process to go forward on the first day that an employee reports an injury yesterday of last week. They are required to report their accidents/injury before they clock out today unless there is noone around or the telephone service is locked out or knocked out, which does happen from time to time.

PORK

mwild31

Dang, you're all lucky, employees have 365 days to report an injury in WA state.

JM in ATL - I think you need to find out a few of things:

One, is the employee saying they were injured on the job or are they saying they are sick or both? Are they recupperating at home because of the sickness or the injury? If it's because of the sickness - then terminate. If it's because of a w/c injury - then have the employee (or if it's the company's responsibility) fill out the paperwork. Just because an employee trips at work, it doesn't necessarily mean that they sustained an injury that needs to be compensated/attended to by w/c. If it's w/c, this person's doctor should be making the w/c determination.

Two, it's ADA when a doctor's note says it's ADA - don't make any assumptions or think that simply because this person is sick - it's immediately an ADA issue.

Three, because there are probably even more scenarios to this situation than what you have shared so far - I do think the start-up company should float a call to their attorney. If I was in the situation as you describe here & it's exactly how you describe it, then I wouldn't call the attorney - but in your pursuit for all of the angles - it appears as though there may be more to the story.

Good luck to you!

Shadowfax

After several posts, I still don't even know what has happened to this guy! What is is injury? What portionof his injuryis attributed to a 'trip and fall?' and what part of his problems are something else? You said his 'illness'! Six weeks at home doesnt make an ADA qualifying impairment. Yeah, anything is possible, but we need more specific facts to be of real help to you.