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Notice of termination while on WC Nevada

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  • #16
    cbg...Thank you, I was not aware of that

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    • #17
      would I be allowed to start the FMLA process now and have it be retroactive to my surgery date?


      Post dating FML would give her protection from any attendance policies that the company has. In the original question it appears the company has a policy of so many weeks without hours will get you termed. Under FMLA that would not be allowed.
      I'm not so sure the ER's internal policy of hours without pay getting a IW terminated is applicable here... this is a workers comensation claim. The EE/IW is being paid wage replacement by the WC carrier, or the legally self insured ER. So, technically while not on the ''payroll'' per se, there are ''wages'' being paid.
      Looks like an overly agressive HR person. It wouldn't be unusual for an ER to want to take a EE of the payroll budget so another person can replace during the IW leave.

      There are overlaps between WC/FMLA/EEOC/ADA that have to be taken into consideration.
      BGirl....IMO..there would be no reason to have the FMLA backdated to the date of your surgery... FMLA would benefit you now going forward...you are still a employee, and the ER has applied their own policies to your leave. Which appears to be in your favor.

      When is a WC injury covered under the FMLA?

      If the employee is eligible for leave under the FMLA and the injury is considered a "serious health condition," the WC leave should be treated under the FMLA. The FMLA defines serious health condition broadly to include any "illness, injury, impairment, or physical or mental condition that involves" either inpatient care or continuing treatment by a health care provider. The statute does not distinguish between work-related and nonwork-related injuries. Thus, any on-the-job injury that requires an employee to take leave to seek inpatient care or continuing treatment likely will be covered by the FMLA.

      Accordingly, whenever an employee is injured on the job and needs time off to recover, the employer immediately should determine if the employee also is eligible for leave under the FMLA. If the employee is eligible for FMLA leave, the employer should notify the employee in writing that the leave is covered under the FMLA so that the leave time may be counted against the employee’s 12-week FMLA entitlement. If the employer does not run the WC leave concurrently with the FMLA leave, the employee may still have the full 12-week FMLA entitlement available to use after the WC leave.
      Many ER's take actions while a EE is on comp leave that may or may not be apply once the IW is released to RTW. Even though terminated/layoff, the IW is still technically an ''employee'' during the comp and/or FMLA leave.

      States vary naturally, but in Calif ie, IW is eligible for up to 104 weeks TTD, if the ER doesn't run FMLA concurrently, an additional 12 weeks unpaid leave would be available. There is no ''job protection'' under the WC leave, however, once MMI the ER is mandated to address RTW issues, even if the IW is ''terminated'' so the ER can fill the position.

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