FMLA/WORKMANS COMP & TERMINATION

pattyo

[font size="1" color="#FF0000"]LAST EDITED ON 11-19-08 AT 03:42PM (CST)[/font][br][br]I have a situation which is setting off red flags which I need to pin down.

We have a new-hire who is within her 90 day guarantee period with the personnel agency we hired her through. She has just filed a worker’s comp claim for an injured shoulder which she says was due to her physical position while typing at her desk. One week ago she requested that her keyboard be lowered as it was causing discomfort on top of her desk. This was fixed yesterday. Meanwhile, she went home last night claiming that her shoulder was in alot of pain and discomfort and today she is out and at the doctor’s office. I am thinking she already had some back problems since she asked me about wearing tennis shoes instead of heels at work.

There have been some performance issues we are working on so as to get her up to speed. We may have let her go within the 90 day period due to performance.

If she is terminated, my concern is maneuvering around her Worker’s Comp claim. Suggestions?

NaeNae55

Your documentation is key here. If you have plenty, then you should go ahead and term her. Work comp is state specific, but I assume she will still qualify for benefits. Your biggest risk comes with her claiming it was retaliation. If she has been being counciled and coached and clearly understands that you feel she is not performing her duties adequately, then you probably have nothing to worry about. If she is sub-par because of her pain, or if you have not made her situation clear to her all along, then you are setting yourself up for a lawsuit. Of course, being in her 90 days initial period helps you considerably, but doesn't shield you from everything.

If you decide to term her, I would talk to my legal counsel first just to make sure I had all of your ducks in a row.

Good luck!

Nae

davids

I agree with Nae that if you began addressing the performance issues prior to her raising the workers' compensation issues you will be in a better position to defend a retaliation claim. As for your suspicion that the employee may have had prior back problems, that will be determined when your workers' comp. carrier reviews her medical records.