Terming after 12 weeks

Balloonman

Just looking to validate my thinking, so please give me some input.
I have an employee who became unable to work due to what was believed to be a non-work related condition. I immediately gave him FMLA paperwork and designated the leave FMLA. He has not worked since 12/4.
Since then they have figured out it is a work related carpal tunnel and not a pinched nerve in back/neck. I notified him that it does not matter if it is work related or not, that is still qualifies for FMLA, and is still designated as such.
He will not be back before his 12 weeks are up and I am planning on terminating. There has been no past practice along these lines. No one ever had a leave designated FMLA prior to me taking my current position. I have designated two previous leaves, FMLA, and offered it to all dads of newborns. Couple of questions, do I need to, or should I have the new treating physician complete a new attending physician statement? He is as of today 3 weeks behind in paying his portion of his health insurance premiums. Of course he "has no money" but smokes a pack a day. The FMLA paperwork outlines weekly payments to be made for his portion, and that he would be responsible for repayment of our portion should he not be back from leave.
I am going to notify him today that once 30 days delinquent on paying his portion of the health insurance premium, the insurance company will terminate terminate coverage.
I have not had this every come up where people did not return by 12 weeks. I have said all along that FMLA protects he job for 12 weeks..... I never say after that we will term.
Just looking to see if anyone sees any issues I am overlooking?
My $0.02 worth.
DJ The Balloonman
I apologize for length, trying to get all pertinant info in.

marc

Sounds like you are on track with the FML aspects, though the insurance piece always makes me nervous. I know they are supposed to continue paying just like they were still working, but it also says Health Insurance is to be maintained. You are probably safe with it.

How about Workers Comp? Once it was determined to be work related, didn't that kick in the claims process? Seems like you should be following that course as well as the FML.

mushroomHR

We have been advised that if someone is on workers' comp and they have used all of their FML time, we cannot terminate them. We've had someone out for almost a year and there's nothing we can do. They just sit home and collect their temporary total disability checks. We were told that if they want to voluntarily resign that is up to them but we know that won't happen and we can't do anything but allow them to be off work if it is a work-related injury.

lnelson

Mushroom -
I had a similar situation where the ee was off work for a long period of time but, we were able to term stating the position needed to be filled and we could no longer hold his position. At a later date the ee was offered a different position that fell within his restrictions and he denied the position.

Lisa

Jaded

I'm fairly new to the forum, but....

I always run FMLA and W.C. claims concurrently.

I would not terminate since you now know it is a work related injury.

Your w.c. carrier should assist you in trying to get the person back to work as quickly as possible. I would not let the absence continue indefinitely...if this happens, push for a functional capacity exam (authorized by your w.c. carrier). We try to get them back to work as quickly as possible if we can accomodate any restrictions.

Don't forget the ADA also plays into the scenario.

As far as his payment for his health insurance premiums...what has been your policy when you have had others off injured?

Don D

I want to take a black felt-tip and mark through the irrelevant pieces of your question....those like smoking a pack a day and the fact that no FMLA was done at your company before you got there. FMLA should, in my opinion and practice, always run concurrently with workers' comp. FMLA should have been approved and acknowledged right away, as soon as the absence was determined to be medically necessary. The insurance piece, to me is irrelevant. In most states, workers' compensation is not a job protection statute and employees can be terminated regardless of that fact.

If this is a pure carpal tunnel diagnosis, you will not have an ADA issue.

Unless your state comp law precludes termination of those out on comp, I would terminate when the employee reaches 480 hours, twelve weeks, of absence. Collection of premium payments is an entirely separate issue.

Balloonman

Don,
The issue with smoking is just personal frustration.
We have been applying FMLA whenever it has been applicable. As we are growing it is an issue that will come up more frequently....
I sat down with are 3 higher ups including the CEO and we will as a practice terminate employment after 12 weeks as I suggested. I am drafting a letter to inform him of that.
This will be our practice regardless of if it is WC or not. The only negative to terming someone on WC is you can lose control of the claim and returning them to work. Some of the others who have replied have said that is one reason not to. I disagree, and in my over 10++ years of dealing with WC, I can count on one hand the number of people who have missed 12 weeks or more.
Always a challenging area when people get let go.
My $0.02 worth.
DJ The Balloonman

Rockie

Good advice from all. State WC often drives whether you can term or not after FMLA. Most of the time, you can term. Always run comp and FMLA concurrently.

I am assuming that you send a letter out to the employee within two working days outlining what their rights and obligations are under the FMLA. A lot of the items that you addressed about payment of insurance premiums, etc. should be in the letter that you send to the employee.

I share your pain on paperwork. I came to my present job 4 years ago and no piece of paperwork existed on FMLA.

I've not had to terminate anyone yet that did not come back after 12 weeks, but I have had several who pushed me to the limit before they would return.

Good luck!

E Wart

I think you are on the right track and others have supported you on this. My only other step would be to talk with the w/c claim rep before you do any termiantion. You may find that the person is ready or can come back or do another job. I can't believe someone with CT can't return before 12 weeks. We have had 2 last year, one with a lot of other complications which sounds similar to yours, and both were out a very few days.
Concerning the insurance, just follow what you told them in your FML letter. (Did you say they had to pay weekly or monthly or could pay when returned?)
E Wart

Balloonman

The reason they will not be back prior to the 12 weeks is their dr. did not diagnois the CTS right off the bat, then when they finally figured it out the physical therapist in questioning him brought to light this was work related. SO now we have an employee who has not worked since 6+ weeks ago. They are in the process of setting a surgery date in the next 10-14 days.
As for the WC, I understand all the issues, and they will not like it, but per company policy, we will terminate after 12 weeks.
I am meeting with him in about 15 minutes to inform him that we will terminate after the FMLA is exhausted, and give him his 15 day notice that his insurance will be terminated for non-payment in 15 days.
My $0.02 worth.
DJ The Balloonman

Ethel

Auto termination after 12 weeks is very harsh. I know that you said you've only had FMLA designations and paperwork since you came there so maybe you've not had time to experience a situation where you do not want to automatically terminate because it would be detremental to the company. Perhaps you might want to insert an "may be terminated" into the verbiage. Just a thought..........

stilldazed

Interesting situation, and I agree with reducing your situation to facts only. Frustration is the nature of the beast with HR work and should not necessarily be part of your decision-making process. I would also agree that you potentially amend your verbiage in your FMLA award letter to describe that an employmee's failure to return to work after 12 weeks "may" be interpreted as voluntary resignation (i.e., leave yourself some latitute). Also, prior regimes are water under the bridge. Your objective should be to do the best you can do despite your company's history. Don't find yourself using prior history as a crutch. It's an easy trap.

We have had several similar situations in the last two years, and I'm learning two fundamental concepts--what is technically correct, and what is realistic/practical. In FMLA alone, technically correct might be to terminate and seek potential overdue benefits premiums through an A/R process. The benefits part is a separate issue, and a tough decision. A little bit of generosity may go a long way in your HR PR effort to thwart potential legal action by a terminated employee later. W/C complicates the process by establishing a well documented set of facts prior to a termination that may surface later as circumstantial evidence. The decision to terminate always remains with us as the employer, but our W/C carrier will generally advise no termination due to the employee's inability to return to work, because of the clarity of the sequence of events. If a termination results from failure to return to work after a work-related incident, it is difficult to prove the termination was not due to the W/C claim. Also, there is a level of responsibility in Florida on the employer to get an employee back to work as part of the rehabilitation process in W/C cases. By the way, we are also finding a new trend among W/C physicians. Malpractice activities (at least in our area) have had a direct impact on the length of certified absences. The trend seems to be longer absences. We are finding that physicians will not allow an employee to RTW until the medical professionals are absolutely sure the employee is out of danger of reinjury or delayed healing.

I terminated an employee mid year 2002 for a valid reason (misrepresentation). Our W/C legal counsel agreed that termination was appropriate because of the seriousness. The misrepresentation was an incorrect SS#, which happened to hide a significant criminal history. (We have child care and elder care facilities in or organization. We're required by state law to disqualify felony and some misdemeanor convictions.) Unfortunately, the employee was on medically certified no work status after W/C-covered injury when we terminated. Termination was technically correct, but the realistic side was that we continued to pay lost wages for nearly 9 months after the term date as we waited for the "ex"-employee to be released to an active duty status. Only when the employee was released for active duty did the lost wage compensation stop. Basically, we paid 66 2/3% of the pre-term wage and received no services for the expenditure for 9 months. The decision was technically correct, but it may not have been a wise practical decision. It's hard to say whether the expense would have been lessened if we had waited, but at the time, we expected the length of absence to extend for only 2 to 4 weeks. Our termination set the stage for an adversarial relationship. The employee promptly hired an attorney. In addition to the lost wages, we also invested 9 months responding to attorney requests. We will also certainly pay again later through our W/C premium. In hindsight, a more expedient decision might have been to return the employee to a transitional position to prove that the employee could perform some level of work and then terminate after the RTW date.

My most recent experience has been a termination for a non-W/C issue. I designated an employee's leave as FMLA based on preliminary info from the employee and spent 12 weeks trying to establish adequate communication with the employee and squabbling with the supervisor to keep the absent employee in the headcount. (Supervisor wanted a termination right away, but had no documentation to support anything other than the employee's absence as the reason.) I allowed the 12 weeks to expire, during which we received minimal cooperation from the employee. I notified the employee after 12 weeks that s/he was considered resigned for failure to return to work after FMLA expiration and insufficient medical evidence supporting that leave was required. The employee promptly filed for unemployment. I received notice yesterday from the state U/C office that unemployment benefits are payable and will begin as soon as the employee is released by the physician and "available for work" since the employee's failure to return was due to "no fault of his/her own." From a bottom-line perspective, I look like I'm costing my organization money, even though my decisions may be technically correct. My boss happens to be the CFO (thinks money more often than not). He generally likes my work quality and ethic, but he also sees first hand the costs associated with some of my decisions.

Best of luck to you.

Balloonman

In Missouri, once released to restricted duty, I would have had the insurance company stop ttd benefits in the first case. Assuming you would have accomodated restricted duty, but for the falsification which resulted in the termination he would have been returned to work. I have used this before, successfully to stop payments of those terminated.
You are correct that terming an employee on WC makes managing the process and the value of the claim more expensive. Still you must drive the course you see fit.
My $0.02 worth.
DJ The Balloonman