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Workman's Comp and Termination of Employment New York

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  • Workman's Comp and Termination of Employment New York

    I'm asking this question for a friend that I use to work with.

    The situation is this: While picking up payroll for the organization, she fell down the steps and severely hurt both her feet. This was in July of this year. She went out on w/c. During the first few weeks, the director's fully disclosed (not in writing) that she would be placed back in the organization upon her recovery. She communicated any information regarding her medical condition to HR personnel and her director.

    Long story short, in November she was still out on w/c because she was awaiting w/c to approve surgery on her foot, and without the surgery the Dr.'s are unable to give an estimated time to return to work. HR in November request a specific time she would/could be back at work; she could not give one to them because she had not had the surgery yet, but she did give them the Dr's statement to this effect.

    She was fired the next week in a letter stating that her position had been filled.

    My/her question: does she have any claim here against the employer? I know she has been out for quite some time, but it was a worked related injury and the complications with the injury was not due to her own fault, and they did at least verbally state she would be taken back.

    I know FMLA provides that they hold the position for 4 months, but is there anything else which would give her a claim against the employer?

    Thanks.
    Last edited by Zermelo; 12-09-2010, 07:49 AM.

  • #2
    Family Medical Leave is 12 weeks.

    NY is not my state so I do not know the state laws. However under FML once the 12 weeks has passed the employment can be terminated even under Worker's Comp.

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    • #3
      Originally posted by HRinMA View Post
      Family Medical Leave is 12 weeks.

      NY is not my state so I do not know the state laws. However under FML once the 12 weeks has passed the employment can be terminated even under Worker's Comp.

      Thanks. Yea, I'm not sure where I thought I read 4 months, but either way, it's past 3 months. I thought because they made some statements to her that she would be taken back, there might be some other obligation for them to at the least give her a preference in re-hiring or something.

      But thanks.

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      • #4
        Sorry, one more thing. I just read on another forum, that you may have some recourse if they did not give you any notice about the FMLA 12 week period.

        I know for a fact she did not receive any FMLA notification.

        Is there a claim here?

        Edit: also I read from this link: http://www.smithchrist.com/nav.cfm?c...subsub=0&id=78

        URGENT UPDATE - New FMLA Regulations

        Important Changes take Effect on 1/16/09 -- Policy Changes Required

        Employer Notice Requirements -- The new regulations expand employer notice obligations under the Act. While the Agency aimed to streamline the regulatory treatment of these obligations, they remain cumbersome and continue to present a fertile ground employer errors. Employers are specifically required to provide (1) a general notice of FMLA rights through, among other options, a wall poster; (2) an eligibility notice once an employee has requested an FMLA-covered leave; (3) notice of the employee’s rights and responsibilities under the Act; and (4) notice that a particular period of leave has been designated as FMLA leave. The time frame for providing employee-specific notices has increased from two (2) days to five (5) days. Importantly, the new regulations clarify that an employee may recover for individualized harms actually resulting from the employer’s failure to provide proper notice of FMLA rights. Such recovery could include a monetary award for damages and/or equitable relief such as reinstatement. However, the regulations no longer contain any categorical penalty relating to such failures and oversights.
        Last edited by Zermelo; 12-09-2010, 08:36 AM.

        Comment


        • #5
          You need to go back and read a US Supreme Court case from 2002; Ragsdale v. Wolverine. That case is still in effect and was not affected by the new regulations; in fact, to some degree the new regulation went into effect in order to be in compliance with Ragsdale.

          Essentially what it says, is that if she received all the time to which she was entitled and the lack of notice did not in any way prevent her from receiving a benefit which she would have received if she was notified, then the lack of notice does not entitle her to any additional time. Notice or not, she has already received more time than the law requires. Therefore, the lack of notice did not adversely affect her and she is not entitled to any more.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

          Comment


          • #6
            Originally posted by cbg View Post
            You need to go back and read a US Supreme Court case from 2002; Ragsdale v. Wolverine. That case is still in effect and was not affected by the new regulations; in fact, to some degree the new regulation went into effect in order to be in compliance with Ragsdale.

            Essentially what it says, is that if she received all the time to which she was entitled and the lack of notice did not in any way prevent her from receiving a benefit which she would have received if she was notified, then the lack of notice does not entitle her to any additional time. Notice or not, she has already received more time than the law requires. Therefore, the lack of notice did not adversely affect her and she is not entitled to any more.
            Well, that's why I'm here, I wouldn't not have known about Ragsdale v. Wolverine without you posting it. Well unless I came across it in google. So thanks. I will research that. Oh well. Must be an interesting argument since they are over-riding plain legislative language which should reflect legislative intent.

            But anyway, thanks.

            Edit #2: Lol, I just realized that it was one of those wonderful 5-4 Supreme Ct. Rulings. Ugh...

            Edit: I just read the decision, and it appears you're correct. But it makes sense since the provisions in question were not statutory but regulatory being issued by the Dept. of Labor rather than passed by Congress:

            Keynote Summary:

            Qualifying employees are guaranteed 12 weeks of unpaid leave each year by the Family and Medical Leave Act of 1993 (FMLA or Act), 107 Stat. 6, as amended, 29 U. S. C. 2601 et seq. (1994 ed. and Supp. V). The Act encourages businesses to adopt more generous policies, and many employers have done so. Respondent Wolverine World Wide, Inc., for example, granted petitioner Tracy Ragsdale 30 weeks of leave when cancer kept her out of work in 1996. Ragsdale nevertheless brought suit under the FMLA. She alleged that because Wolverine was in technical violation of certain Labor Department regulations, she was entitled to more leave.

            One of these regulations, 29 CFR 825.700(a) (2001), did support Ragsdale's claim. It required the company to grant her 12 more weeks of leave because it had not informed her that the 30-week absence would count against her FMLA entitlement. We hold that the regulation is contrary to the Act and beyond the Secretary of Labor's authority. Ragsdale was entitled to no more leave, and Wolverine was entitled to summary judgment.
            Ok thanks again, I learned a lot though.
            Last edited by Zermelo; 12-09-2010, 09:57 AM.

            Comment


            • #7
              When a w/c case is first opened, most times the details are fuzzy. So the management tries to reassure the employee using what is known at the time. When the circumstances change, management has to adjust to those facts.

              For instance I placed an employee on leave earlier today because I could not accomodate her light duty request in a worker's comp injury. I told the employee that her job would be there for her at her return.

              I expect this to be true. However if I am told she will be out for more than 6 months, then I may rethink the decision to hold her position (my company does not fall under FML). My company prefers to hire temp workers to fill positions for people on leave but some companies don't.

              So the director may said what (s)he thought was the truth during the first few weeks, not knowing how serious the injury will be.

              Comment


              • #8
                Originally posted by HRinMA View Post
                When a w/c case is first opened, most times the details are fuzzy. So the management tries to reassure the employee using what is known at the time. When the circumstances change, management has to adjust to those facts.

                For instance I placed an employee on leave earlier today because I could not accomodate her light duty request in a worker's comp injury. I told the employee that her job would be there for her at her return.

                I expect this to be true. However if I am told she will be out for more than 6 months, then I may rethink the decision to hold her position (my company does not fall under FML). My company prefers to hire temp workers to fill positions for people on leave but some companies don't.

                So the director may said what (s)he thought was the truth during the first few weeks, not knowing how serious the injury will be.
                I understand. I think employers should just adopt a general policy. If they fall within the FMLA, to make it known to the employee that after 3 months there is no legal obligation for their position to be held. And even if the employer does not fall under the FMLA, to give a clear period where the employee cannot expect the employor to hold the position. At least in this situation the employee can do whatever they can to either return to work in some fashion within the stated timeframe, or at least understand and prepare for the circumstances of termination.

                But at least the FMLA provides something.
                Last edited by Zermelo; 12-09-2010, 11:52 AM.

                Comment


                • #9
                  I agree that the employer should be clear with the employee on what to expect. That is why I send letters to each injuried employee explaining what happens now along with information of where to send bills.

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                  • #10
                    You're a good HR person, HRinMA.
                    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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                    • #11
                      Originally posted by Betty3 View Post
                      You're a good HR person, HRinMA.
                      Thanks. I just try to put myself in the employee's shoes in the situation and how unnerving it must be to be injured.

                      As a plus it further protects the company because we have laid out the procedure to the employee.

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