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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 89607
Experience:  20+ Years of Employment Law Experience
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I was fired due to medical work restrictions (light duty).

Customer Question

I was fired due to medical work restrictions (light duty). I injured my arm at work and my employer sent me to the doctor and said to have it filed under BWC this was in Feb 2010. I was put on light duty restrictions and went through Physical Therapy for several weeks and continued working for them through this time period. After a couple of follow up visits, the BWC doctor recommended me to a surgeon and he determined that surgery would be needed, this took place on Sept. 23 2010. During my time off I kept in contact with my employer giving them updates, and their reply was always positive, my last reply from my employer was Dec 23 2010 when I informed them about my expected return to work date the surgeon recommended, which would be the second week of Jan 2011 and they replied "Merry Christmas to you and your son and we will see you in just a few weeks"

My latest follow up with the surgeon was Jan 7 2011 and I informed my employer, the surgeon said I could go back to work on Jan 12 2011 with light duty restrictions on my left arm only. So I went to work 7:30am and removed snow from the loading dock and side walks at the warehouse, helped pack some orders, repaired a couple of heat sealers and packaged some products to be ready for sale. My supervisor came in near 10:00am and asked me "what are you doing here" I replied this is my release back to work date, she replied "I need to have a talk with you". This is when she informed me that upper management had sent me an e-mail last night to let me know they decided to terminate my employment. I told her I was unaware of the e-mail and she said late last night upper management informed her of the termination e-mail sent to me and that due to my disability of my left arm for light duty restrictions that I was a liability down the road if I stayed employed there, she then suggested that I go talk with them to see if they would change their decision. After talking with upper management they Just simply said that due to work restriction that there was no light duty work available and that they had hired extra help for the busy season.

I pleaded my case and told them I didn't understand why this light duty restriction was cause for termination when they had let me work earlier in the year before having the surgery, and that the restriction now only applied to lifting extra heavy items with left arm only and that ninety percent of the work in the warehouse was considered light duty work as it is. Upper management just said sorry this is our decision and they were fully staffed. I asked, if the surgeon lifts the restriction, will I be considered for rehire, they said yes because I have been a very good worker for them, but only if they need to fill a position. I even asked them to reconsider if the surgeon lifts the restriction this day, they just replied that the surgeon couldn't lift the restriction this soon.

I went back and talked to my supervisor and she really didn't want to see me go, and she said to give her a couple of days to talk to upper management and she would e-mail me back with the result of her trying to persuade them to reconsider because, they have had several BWC cases over the years and at this moment they put another co-worker on light duty due to a lump that has formed on his hand.

I was told by my supervisor that the termination by upper management was because I am a future risk due to my arm that was injured at work, but was told a conflicting reason for termination by upper management that there was no light duty work available and they were fully staffed.

This is a copy of the e-mail I received on Jan 11 2011, but didn't get to read until Jan 12th after being sent home from work.

Hello Dave,

Unfortunately, we don't have any light duty work available that meets
these restrictions, so we can't have you back at work this Thursday. In
addition, we are no longer going to be able to keep you on the Salary
Continuation Program beyond this Friday, January 14th. However, you
will be able to get your salary paid by the BWC once we stop paying it.
We'll let the BWC know so they can take over your salary payment as soon
as possible.

In addition to your final paycheck you'll receive from us next week,
we'll mail you information about continuing health insurance coverage
through COBRA, if you decide you want to do that.

We wish you well, and hope things improve for you.

Regards,

end of e-mail

My question is does this qualify for discrimination?

Should I take BWC wages at a lower rate that my employer suggest, which I don't know how long will last?

Should I file for unemployment right away or wait till the BWC payments stop?

I would rather keep working at the job I just lost, because there are no other jobs in this area that pay near my current wages.

Hopefully my supervisor can convince upper management to keep me employed.

Thanks for any comment you may have.

Dave
Submitted: 3 years ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 3 years ago.
Unfortunately, your job protection by law was only 12 weeks under the Family and Medical Leave Act (which runs the same time as leave under workers compensation). After the 12 weeks of protection and absent any written contract to the contrary, I am afraid the employer can terminate your employment. Also, light duty is something that is at the discretion of the employer and if the employer claims they have no light duty they do not have to provide light duty. Now, if the employer is treating you as permanently disabled (which they are not if they are saying they will consider rehire once restrictions are removed) you could have a claim under the Americans with Disabilities Act, but as I said there is no indication of that here. Thus, your legal recourse is to continue to collect workers compensation benefits for your temporary total disability and when you are able to return to work full duty without restrictions you can apply for and qualify for unemployment benefits since you lost your employment through no fault of your own. Unfortunately, these are your legal recourses.


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Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 89607
Experience: 20+ Years of Employment Law Experience
Law Educator, Esq. and 6 other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.
Will this qualify me for some type of discrimination suit based on our last discussion?


Hello Dave,

I met with Kay and her final decision was that since we don't have any light duty work available that meets your restrictions, we can't have you back at work. We'll pay you through this Friday, January 14th, which will be your last day of employment with us. We've contacted the Bureau of Worker's Compensation so they'll know to take over your salary payments after Friday. We have a contact name and number for you at the BWC. It is Bruce H, and his email isXXX@XXXXXX.XXX His phone number is XXXXX The claim number associated with your claim is 10-307556.

We wish you the best as you continue your recovery.

Jenny

(End of email)

The following is my email reply back to my employer:


Hello Jenny,

Thank you for your efforts. Is there any possibility for rehire or is this a permanent decision? If it's not a permanent decision what will you require of me to be able to come back to work? Also may I get a recommendation for future employment prospects?

Sincerely

David

(End of email)

And the following is their final email reply back to me when I asked them about being rehired down the road:


Hello Dave,

This is a permanent decision. We would be happy to write a recommendation for you.

Jenny

(End of email)


So it seems to me that since they are not even going to consider me for rehire and stated this is a permanent decision on their part, that due to my on the job injury and work restrictions, they don't want me back due to disability and liability reasons even when my work restrictions are removed. I have been a model employee for them and have never been reprimanded or given any type of discipline warnings as I have not caused them any reason to do so in the past.

What are your thoughts? Do I have a strong enough case to go after them?

Thank you
Expert:  Law Educator, Esq. replied 3 years ago.
I am afraid they do not have to consider you for rehire and that still would not be considered discrimination. You have a temporary disability, not one that even qualifies under the Americans with Disabilities Act (they require it to be a disability that permanently impairs a major life function). I am afraid you are stuck in a terrible and frustrating position, but unemployment will be your only recourse once you have reached your maximum medical cure under workers compensation
Customer: replied 3 years ago.
I was under the assumption that I would qualify based on part of your reply to my earlier question about them treating me as permanently disabled by not even allowing me to be rehired when the restrictions are removed, even if the restrictions were removed the next day before my supposedly termination date on the 14th, tomorrow. The following is part of your reply that I am referring to. "Now, if the employer is treating you as permanently disabled (which they are not if they are saying they will consider rehire once restrictions are removed) you could have a claim under the Americans with Disabilities Act, but as I said there is no indication of that here."

They sent an email telling me that this is a permanant decision to not rehire me even when restrictions are removed.

I understand that I do not have a qualifying disability under the Act. but the part about my employer "Treating me as permanently disabled" would somehow have an effect.
Expert:  Law Educator, Esq. replied 3 years ago.
It is a possible argument, which I said in my first post, but if the employer has any other legitimate business reasons for the no rehire they would defeat your claim. Yes, you do have an argument they are treating you as permanently disabled and this would be actually a complaint you could file with the EEOC and they have to investigate before you could go to court. Just realize that only about 5% of the cases that are investigated by the EEOC and the state discrimination agencies ever get a right to sue letter and out of that 5% of cases only about 10% or less get a verdict in favor of the employee. Those numbers should tell you how stringent these cases are. HOWEVER, your complaint may at least encourage the employer to offer you a severance agreement to avoid having to spend the cost of fighting your claim.

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