Leave Of Absence

6270107 · February 2007

We have an employee who is on a leave of absence now for four months. She has exhausted all her family medica leave last year and her anniversary is March 24, 2007. She will not have enough hours to qualify for fml. She was denied short term disability and now is stating that her doctor said it is a work related injury. (carpal tunnel). Our WC said they were going to deny because our policy states you have to submit the request within a 30 day period. Would you terminate now or after her anniversary date? Or would you even terminate?

HRDir1 · February 2007

The answer may hinge on whether the employee is considered to be disabled under the federal ADA or state disability statute. If she is, she may be entitled to additional (unpaid) leave or possibly even light duty as a reasonable accommodation. If she doesn't qualify as disabled, it sounds like she could be terminated now.

GoPatsNH · February 2007

You may also want to consider the possibility of a wrongful discharge claim. Many state courts have ruled that terminating an employee in retaliation for filing a WC claim is wrongful discharge (even if the state is at-will). Obviously, this isn't your intent, but the timing/circumstances may leave you open to some liability. You may want to check with your lawyer about it.

Robin Pfaff · March 2007

I agree, of course, to check with your company's attorney. I would wait until WC sends a denial of claim. Once she has exhausted all means of possible "disability", I would simply send her a certified letter giving her a chance to return to work by a certain date, and if she cannot, notifying that you can (nor do you have to) hold her position any longer.

Leave Of Absence

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