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LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 28001
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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If a person is on workmans comp due to an injury on the job

Customer Question

If a person is on workman's comp due to an injury on the job that happened 10/18/12, can the employer later on(1/10/13) then also layoff the employee?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

A worker being out on a workers' compensation claim does not prevent the employer from later laying that person off, eve while they are still out on disability, or back to work on a limited or full work basis.

If you are still on disability, you will continue on disability until you are recovered enough to return to work. If you employer does not have a position at that time for you, you will then be automatically be eligible for unemployment benefits.

Now, there is an exception to the above laws, and that is if you qualified for leave under the Family and Medical Leave Act (FMLA). To be eligible for leave under the FMLA, an employee must be either a full-time or part-time employee, have more than 12 months (52 weeks) of service with the employer, have worked at least 1,250 hours in the 12-month period (24 hours per week) before the date the leave begins, and work at a location in which the employer has at least 50 employees within 75 miles radius of the employee's work site.

If you are eligible under the Act, and you are injured on the job and unable to work, your employer must legally hold your position for you for at least 12 weeks---and thus, if this were the case and the injured employee was entitled to FMLA leave, then it would have been unlawful for the employer to terminate them any earlier than January 11, 2013. It would appear that the employee did qualify for the FMLA and that the employer may have miscalculated the date they were allowed to terminate the employee, by one day.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
Customer: replied 1 year ago.

The employee's handbook of the company that I work for states"an employee absent from work for up to 12 months on an approved Work Comp. leave will have the employee portion of their medical and dental premiums paid such company." By laying the employee off they were also able to discontinue their health insurance and now the employee has to pay for Cobra ins. or have none.


So, can they get by with this when their own handbook states such?

Expert:  LawTalk replied 1 year ago.
Good morning Rocky,

You wrote:

The employee's handbook of the company that I work for states"an employee absent from work for up to 12 months on an approved Work Comp. leave will have the employee portion of their medical and dental premiums paid such company." By laying the employee off they were also able to discontinue their health insurance and now the employee has to pay for Cobra ins. or have none.

 


So, can they get by with this when their own handbook states such?

 

Well, this as an entirely different question, and issue, altogether.


The policy seems to suggest that an employee out on approved workers compensation leave must have their employer paid benefits continued and paid off by the company. This would be contrary to them terminating your coverage, even if they did lay you off---at least for the period of one year.

 

If there was not a legitimate basis for laying you off---such as the determination of past misconduct that came to light after the injury---and would give them the right to terminate you---then arguably, you have a claim for their violation of their own policy.

 

Under Idaho law, an employer and employee are considered to be in quasi-contract as to the benefits promised in the company's employee/policy handbook. Based upon that law and your rights, you might want to consider speaking with a local employment law attorney about filing a claim against your employer for violating the policy rights that you are afforded under the law.

 

Alternatively, you may sue them directly in small claim court---but you will be limited to $5,000 there---which may not cover your losses. Additionally, a local workers' compensation attorney should be able to assist you as well, if you are still disabled from employment.

 

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug

 

 

Customer: replied 1 year ago.

Other people in my division had been layed off in Nov. 2012 due to lack of work. When they called and told me I was layed off as of 1/10/13, I was told it was also due to lack of work. This seemed strange to me as I was already on Worker's Comp. and hadn't yet( and still haven't) been released to work. They had no other reason to lay me off as far as any misconduct or otherwise. So, as to my inital question they can still "lay off" a person who isn't at that time working or drawing wages from them?

Expert:  LawTalk replied 1 year ago.
Good morning,

Rocky, I agree with you, and your position should be that whether you are laid off or not, because you are on approved workers compensation leave, and based on their written policy of continuing benefits, that they are obligated to pay your benefits for you.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested.

I wish you the best in 2013,

Doug

LawTalk, Attorney
Satisfied Customers: 28001
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 2 other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Rocky. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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