Texas Workers Comp
ccalhoun
2 Posts
Our company has a neutral leave of absence policy which limits all LOA to a total of 12 weeks,exclusive of any statutory protection (including Workers Comp injuries). I checked with SHRM (Society of Human Resources Management) on FMLA and we are OK with this but questioning if this is in compliance with Texas Workers' Compensation Act as noted on page 6 of December 2002 issue of Texas Employment Law Letter.
Company wants to terminate an employee who has been out on Workers Comp since July 2002 and on FMLA since October 1, 2002 and is not released to return to work. All other leaves only are allowed 12 weeks, can employee be removed from payroll and health insurance benefits?
Company wants to terminate an employee who has been out on Workers Comp since July 2002 and on FMLA since October 1, 2002 and is not released to return to work. All other leaves only are allowed 12 weeks, can employee be removed from payroll and health insurance benefits?
Comments
Retaliation claims are made fairly frequently in court, and have ended up in some very large verdicts. Before terminating the employee, the company should review its applications of its leave policies to ensure that employees have been treated consitantly.
If the employee has exhausted all company leave and all FMLA leave, and the company has enforced its leave policies consitantly, the employee may be terminated even if he or she is out for a workplace injury (that is assuming that the employee cannot do the job, with or without reasonable accomodations).
One Caveat: Under the Americans with Disabilities Act, some courts have held that granting additional leave may be a reasonable accomodation when the additional leave has a specified end date, and the employer can reasonably afford the accomodation. (This assumes that the employee is disabled). This might apply, for example, if the employee's doctor says "he needs two more weeks of therapy or treatment, then he will be able to return to duty.") Before terminating the employee, the employer would be wise to consider whether some additional leave would be required under the ADA.
If a company does terminate the employee, the company must also remember to advise the employee of his or her COBRA righst.
Please note that the information in this email is a general statement of the law in Texas, and is not specific legal advice related to your situation. Since we have not entered into an attorney client relationship, I cannot give you detailed specific legal advise on this situation.
Good Luck!
Theresa Gegen
Editor, Texas Employment Law Letter
My $0.02 worth.
Dj The Balloonman
I had a back injury that just seemed to drag on and on. The ee kept missing appointments and the chiropractor wouldn't release the ee because he hadn't completed his treatment. The case manager pointed out to the chiropractor that the ee was "directing" his own medical care ... not the doctor (made the doctor disgusted with the ee!). The next appointment the ee kept, the doctor evaluated his progress and assigned a MMI. The case closed within a month!