Workers Comp Termination

We have a FT employee on WC for a month now.  Due to business reasons, we need to restructure and the employees position as a Mgr will be consolidated with another positon, which happens to be the new one as a Director.  The current mgr will not qualify for the director positon, as it requires an RN license and she has an LPN.  With that said, the mgr is not on FMLA and back to FT work with follow up appts with the doc.  Also, we will give her the option of transfering/applying for other positions if she qualifies. 

I've heard some laws are different in certain states on letting an employee on wc go.  I am in FL and think I should consult with an employment attorney since there is that added layer with the wc.

What are your thoughts and how would you handle the lay off? 




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  • This may sound controversial but here goes; I believe in a perfect world HR professionals are to “eliminate” risks in employment decisions, however, as we all know we are not in a perfect world especially with the current economic conditions that aren’t projected to begin to rebound until at least 2011.  With that being said, we (HR) have to do something to support the strategic business necessities of remaining a viable and stable operation in a tumultuous climate of reducing costs, reducing manpower, decreasing wastes, increasing quality, increasing productivity, and on and on…, so what I believe HR has to do is to begin to “manage” risks.  Now I know that’s a radical thing to say with the increased legislative support to protect EEs (ie ADA, FMLA, etc) coupled with the continuing increases in EEOC claimed filed each year.  I feel historically we have played a supportive role (on the side lines) to the main drivers of business operations, by observing processes and offering our expert opinions (sometimes only when asked, meaning we didn’t always have involvement every time) which may or may not have been acted upon.  If the truth be known, they (one’s making strategic business decisions) are going to make any “perceived” necessary cuts they “feel” they have to make to sustain the company so when 2011 finally makes it here, your company is still opened and ready for business!  So I feel we either get on board and help “manage/reduce” risks and become a valued member of the executive leadership team or they will simply pull out of dock without us, and thereby increase the risk of making an unnecessarily “extra high risk” decision which we could have been circumvented had we been involved when the final decision was made. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

    With that being said, I can see that you are considering/weighing your risks with this particular layoff situation.  It appears that this decision has already been made and they want to proceed with it, so it looks to be a question of how best to minimize the risk associated with it.  I believe that can be accomplished in two ways 1) when exactly to do it and 2) how you do it.  As we all know, even if we have all our ducks in row, the ex-employee can take suit against us which will cost the company money even if ultimately we win the case in the end. 

    1)     With respect to the first item, “when exactly to do it” I would consider how long you think the follow-up appointments with the doctor are going to last (for the claim to be closed) and how immediately this transition needs to take place.  Obviously, the more time between the two the lower the risk.  I’ve seen court circuit decisions in favor of the employer if they take an action against the employee and there was at least 4 months between the two (WC/FMLA and the termination).  Also, in my research of layoff I’ve found the courts to be more flexible with informing the employee that it’s just a layoff as opposed to informing them that the position is eliminated which creates a timelines of expectation for that position to really be eliminated.  I’m not sure if you have that level of flexibility or time.

    2)    With respect to the second item, “how you do it” might be the bigger of the two items to consider.  Here is where I get into the cultural effect that I have referred to in earlier posts of how the EE and ER relationship is at your organization when assessing the risk potential, as well as, how this EE feels they have been treated thus far in their employment and the level of respect, recognition and gratitude you express for their contributions to the company in the past.  If you are at all able to transfer this employee to another department as a nurse manager that would be wonderful, I know health care facilities always seem to be short of reliable nurses especially on 2nd and 3rd shifts.  Now this could be perceived as a slap-in-the-face but if it’s delivered properly than can minimize that potential (all about reducing risk here) and perhaps then once the economy stabilized this employee can be transferred back into a leadership role again even if it might be in another unit.  I don’t have enough details to really understand if this is even a possibility at this point.  If you don’t have that potential, then all you are really left with is how diplomatic you convey this message.  I would assume that you need to take a supportive role, having worked in the healthcare industry, I have found that communications with nurses and aides takes a lot more finesse then what you need in the manufacturing sector.  As you are well aware of the underlying tension that exists between being an LPN verses being an RN, remembering this can only help you as you decide how to address this issue.

    You are wise to want to consult an employment attorney.  I know there are sites where you can ask questions of attorneys for free, but I’m not sure how much detail you’re able to provide or how much advice you actually get back.  I’m wondering if you’re company will be willing to take on that additional cost of consulting an attorney, especially now. 

    Now I know this isn’t the most conservative stance and one could very strongly make the argument that assessing risk is great until you get the first law suit against you which will cost a million dollars …, so maybe I’ve stirred up some emotions here and others will post.

  • I forgot to suggest that you check out a great informational site on WC which also has info for each state as well as a great forum just like this one (but remember no forum site is as great as this one!!!).  It's at hope that helps! [:)]
  • WOW!  Thanks for taking the time to provide me with helpful info that I will use.
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