Worker's Comp Nightmare

We have an employee who is out on Worker's Comp since Sept 2005. Our FMLA period runs on a yearly calendar base, so employee is utilizing FMLA leave concurrently with her Worker's Comp leave.

The employee is also on our Health Ins plan and is subsequently 3 months behind on paying her employee contribution. Our policy does not mandate employees to substitute bank sick leave or vacation to cover costs.

The employee has some vacation banked and has chosen not to utilize vacation pay to cover costs. It appears that we are just "on the hook" for these premiums??????

Has anyone ever run into a similar situation? Also, once the FMLA runs out, and the employee is still on worker's comp (Assumed to happen this way), is the opportunity to terminate for failure to return to work after FMLA just?

Our FMLA policy states, "employees who fail to return to work following FMLA may be considered to have voluntarily resigned their employment."

The employee's only other recourse is to apply for a personal leave of absence, which the organization would be unwilling to grant. The employee is unmotivated and has no desire to return to work in the eyes of the organization. Any suggestions to handling this scenario are appreciated.

Comments

  • 11 Comments sorted by Votes Date Added
  • If he's been out this long on work comp there may be some permanency to his condition which would bring the ADA into play once the FMLA is out of play. Tread carefully. I would be in constant touch with the work comp case manager to keep that person "working" this thing to some kind of resolution. There are probably lawyers (NOT that there's anything wrong with that)involved by now, which will naturally slow down the process. This person may have gotten too comfortable in the work comp system. In the meantime, your 300 log, your mod factor, and your incidence rates are going through the roof. Good luck.
  • Since we don't have to deal with FMLA, I would be curious. If there is an employee contribution for health insurance, does the employee have to pay his/her portion during an extended leave?


  • [font size="1" color="#FF0000"]LAST EDITED ON 02-17-06 AT 00:42AM (CST)[/font][br][br]Regarding the insurance part of this, I can only give you a partial answer based on what we do. We cover the whole premium for Employee Only coverage and 50% for dependents. We have canceled dependent coverage when an ee on FMLA didn't pay the employee portion of the premium.

    Recently there was a short discussion on another thread about the benefits of requiring ees to exhaust paid leave while on FMLA. Your situation is another good reason for doing so -- there would have been pay from which to deduct the premiums, at least for awhile.

    Regarding termination after FMLA is used up, Larry made a good point that you then have to consider the ADA angle. There are some instances where an absence longer than 12 weeks may be a reasonable accommodation.

    If it's determined there's no ADA applicability or that a longer absence would not be an appropriate or reasonable accommodation, here's what we do: Our Return to Work procedure states that an ee who has exhausted all applicable forms of paid and unpaid leave (including leave granted as an ADA accommodation) may only have their leave extended if there is no business necessity to fill their job. The business necessity determination is made jointly by the supervisor, benefits coordinator, me, and sometimes our atty. if it's particularly sticky. We go through a work sheet which takes into account things like how much more time off the person needs; how expensive or time consuming it will be to hire and train a replacement; whether there is a qualified substitute available; and other similar considerations. After we work through this, we make a recommendation to our Supt. about whether the ee should be terminated or allowed to continue on leave. It's been a big relief to me to have this process in place.
  • Quick question - When you completed the Employer Response to Employee Request for Family or Medical Leave (Form WH-381) what did you mark on #5 regarding payment of premiums? This is the sheet from the US Department of Labor which will govern how you handle non-payment of the premiums.

    5.(a) is for the when payments are due.
    5.(b) mentions the minimum 30-day grace period and the requirements of the employer before insurance can be cancelled.

    You should have completed this form after the employee requested the FML.
  • Going forward, you should really consider changing, or better defining your FMLA policies, such as:
    1). Don't count FMLA on a calandar basis, instead use a rolling 12 month period. 2). State that employees must continue to pay their share of the health premiums while on any leave and failure to do so may result in cancellation of coverage. 3). Require employees to use all of their eligible sick time, and all or part of their remaining vacation time as part of the FMLA period.
    As already pointed out by others, the workers comp aspect of your issue makes it much more complicated - wait to see how that resolves itself before making a termination decision. But in the meantime, by changing your leave polices as suggested reduces some of the finacial impact to your organization while the employee is on leave.
  • I'm in the processing of finding proof to post, but in WI, I don't believe you can force ees to use/exhaust PTO when on FMLA. They can opt to, but you can't force.

    Regarding insurance, we have a response form for ees stating all the issues people have mentioned (continuation of group health coverage, contributions to premiums, etc.). If you would like a copy, please let me know.

    I'll get back to you with a site for the FMLA portion.
  • You are correct in that the WIFMLA allows the EE to decide whether or not they want to use any available paid time off in conjunction with leave qualifying under the WIFMLA. Once the WIFMLA expires and the EE is only under federal leave, the employer can require the EE to use any available paid time off prior to the receipt of any additional unpaid time off.

    You can find this reference in chapter 103, 103.10 of the WI regulations.
  • Thanks Linda! I just found it also.
  • W/C trumps FMLA running concurrently, it simply wipes the FMLA off of the books for further protection should the W/C end and now the ee applies for FMLA. This is our circumstance, but fortunately, we have never had this to occur. The owners would not let me change our policy and procedures to include FMLA concurrently with W/C so we are stuck and ready when it happens!

    PORK
  • We had a similar situation. The employee's FMLA ran concurrently with her Worker's Comp Leave. She was in a health plan that was totally paid by the agency. When her FMLA was up, she was sent a COBRA notice. The WC carrier was then informed that she lost that benefit and updated with the cost of her lost benefit. The worker's comp carrier adjusted her worker's comp benefit to accomidate. If she had a health plan that required an employee contribution she would have been responsible for that portion from day one of the unpaided leave. (We made the mistake of paying this premium once thinking we would get reimbursed and of course we were stuck with it.) Normally all FMLA time is paid with vacation and sick time if it is available. If however, on WC our policy states we do not pay the employee while on WC in full or partially. If they can stay home and recieve the same pay there is no motivation for returning to work. Firing someone on WC is risky. If your policy is to fire someone not returning from FMLA and it doesn't address the WC issue you are taking a chance for a legal action. If the employee is off long enough to cause hardship to your agency you can hire a replacment. She will eventually quit and you can pay her out vacaton, if that is your policy, and close the books on her. We waited a long time for ours to quit. Our WC comp carrier did all the dirty work.




    AM_FM
  • Proceed carefully with the return to work/resignation part. As for the benefits costs, suck it up and admit your company be on the hook for the $$.

    As for return to work and workers' comp, check your company policy and state statute. Work toward getting an MMI on the worker. If available, use that as a pivot point to change the employee's status.

    I would ask why your company would not be willing to grant personal leave of absence. At this point it could look like retaliation. Your best defense is to base the decision on pre-injury records. Hopefully, you have something.

    Cancel the benefits once FMLA is ended. Theoretically, the worker is using workers' comp and might have limited need for other insurance benefits at this point. It is also legal, an opportunity to send a message that's legal, and a valid step to limit the outstanding debt.

    Take it from personal experience. My company had a similar situation--workers' comp very serious nightmare (simple knee injury turned to near death experience for the EE), company felt compassionate, extended benefits way too long (2+ years), settled the w/c claim for an ungodly amount of money, and was left holding the bag for thousands in benefits costs. Wasn't my decision, but it sure makes me look back as the HR person, and I'm the one stuck trying to coerce the worker to repay the thousands, who has since relocated with the settlement, lives the life of leasure, and probably laughs at the periodic letter I send every few months.
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