Worker's Comp Nightmare
fondy21
27 Posts
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.
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
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.
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.
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.
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 can find this reference in chapter 103, 103.10 of the WI regulations.
PORK
AM_FM
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.