Can I ask you several specific questions?
1. Are you a union member? If so, are they assisting you at all on these issues?
2. Is there a company / agency policy stating what the length of time is that you may be out of work for any reason before being terminated? For example. some companies will use the strict 12 week FMLA limit and terminate the employee at the 13th week of being out of work (whether being paid workers comp or disability or not being paid at all)?
3. Finally, can you clarify what your overall legal question is here? You have given me a lot of really good details but I am uncertain what your ultimate question is -- Do you want to know if they can legally terminate you if you are out of work with a work related injury?
Our Union representative has not been able to do more than deal with the loss of vacation time issue, as other aspects of our Contract have not been violated.
There is no policy on length of leave before termination. When I took my parenting leaves, I used vacation & comp time to get those under certain thresholds, then about 3 months of sick leave, 5 weeks' unpaid leave that was counted as the only FMLA portion, then some vacation for a total of 5 months each time.
Overall: might the City's past practice of allowing employees to use leave up to its hour limits (and beyond with donated sick leave), not requiring use of FMLA forms even when leaves are for more than 3 days (family members and serious illnesses) and sudden change of policy in my case have any impact on an unlawful termination action?
Do you know whether termination would have an impact on retirement benefits (MN PERA Police & Fire Fund)? I understand retiring before my Worker's Comp appeal is completed terminates that action, and it's of significant $$ value. I'd rather return to work as soon as I'm healed.
I believe I would have adequate facts to show discrimination on several points, but really don't want to have to sue the City.
Hello again Mari --
First, regarding the company right to terminate an employee who is out of work for any reason at all -- in the absence of a clear written policy regarding how long a company or agency must keep a job open for an absent employee, it is completely up to the employer when to terminate that employee and the employer can do it based upon a clear written policy (for example, my own husband worked in a union position for a private warehouse and the union and company negotiated a one year absence rule -- the company would hold the job open for one year for any employee who was out of work for any reason (whether hurt on the job or recovering from a debilitating illness -- it did not matter) and at the end of the year if the employee was unable to return to their old position, the company had the right to terminate the employee).
In the absence of a clear written policy set forth by the employer and/or a collective bargaining agreement where the policy for termination under these circumstances is agreed upon between the union and the company, then the company or agency must abide by federal employment law and the FMLA and if an employee requests a leave for any reason or must be out on a medical leave or is out on worker's compensation leave then the employee has up to 12 weeks of leave that can be taken unpaid to deal with these issues. At the end of the 12th week if the employee is unable to return to work then the company or agency has the right to either terminate the employee or to hold the job open if the employer chooses to do so (the employer can also offer a lesser job for lesser pay at the end of the 12 week period).
I have seen many different applications of the FMLA law and the ability of a company to terminate an employee either at the end of FMLA or at some other time of the employer's choosing and I can tell you that there is much confusion regarding all of this -- so it is probably easiest for me to set out the law/rules in a bullet point format as follows:
(A) FMLA is federal law applicable to companies or agencies employing more than 50 people (federal law) which provides up to 12 weeks unpaid leave for any purpose. Most states have adopted their own versions of FMLA and have made some minor changes (such as lowering the number of employees to 20 in many states) but for the most part, the federal version of the law is the one followed in every state (federal law overrides and overrules state law and the only thing that the states can do to change it is to make it stricter in applicability -- such as lowering the number of employees to 20 in many states -- the states cannot make the law any looser/easier (such as raising the number of employees to more than 50);
(B) The 12 weeks ends and then it is completely up to the employer whether or not the employer will terminate the employee or hold the job open or offer a lesser paying job to the employee. Whatever the employer decides to do is perfectly legal. An employer does not have to offer a part time position as an "accomodation" under the ADA to any employee seeking such a position at the end of the 12 week period either if the employer chooses not to do so (touching briefly on the ADA as it may be applicable here, the ADA requires an employer to make "reasonable" accomodations for a disabled employee to return to work or to continue to work for that company -- but a reasonable accomodation is not a change in work hours or work days - a reasonable accomodation is one where the employee may need a chair in order to sit through their shift rather than stand through the shift (such as a cashier who must sit down due to MS or another disability) -- while it may seem reasonable to you and I to make an employer change the schedule of the employee to accomodate a disability under the ADA, these issues have been litigated in both state and federal courts and employers have won on this issue -- the employer does not have to change workdays or hours or schedules as a reasonable accomodation under the ADA.
(C) Regarding sick, vacation and other accumulated time -- again, it is completely up to the employer whether or not to permit the employee to use such accumulated time as a means of having a paycheck while the employee is out on the FMLA leave. Some employers encourage it and some employers do not permit it -- but it is completely up to the employer.
(D) REgarding whether or not accumulated sick time can be taken separately from any FMLA leave (thus effectively giving the employee more than the 12 week FMLA leave during the same calendar year). Again -- this is up to the employer -- however, I have seen most employers limit all total leave to the 12 weeks per calendar year and so if you are out a week sick in February and then go out on FMLA in August, the employer can and does limit your next leave to only 11 weeks on the FMLA. The only employers I have seen who are generally more generous here are state and local government agencies and offices -- and this is what is sounds like your employer does -- they permit you to take your sick time in ADDITION to any FMLA time so that you can effectively receive more than the 12 weeks of FMLA time if you need to take it for any reason.
(E) Regarding FMLA and worker's compensation laws and the interaction between the two sets of laws. Many employees are under the mistaken belief that an employee injured on the job cannot be terminated. This is not the case at all. The company has the right to terminate a person collecting worker;s compensation after the same 12 week FMLA period as all other workers, thereby cutting off the employees right and access to their own job and any other job within the company or agency once their doctor clears them for return to work in any capacity. This is where it can get ugly for the employee -- if an employee is terminated while collecting worker;s compensation, the employer/insurer must still continue to pay the worker's compensation weekly payments until such time as the employee is medically cleared to return to work. Once the employee is medically cleared to return to work, if there is no job for the employee to return to then the employee can and will be cut off from the worker's compensation weekly payments and will have no option but to apply for state unemployment benefits at that time. These are the reasons why many lawyers will push settling worker;s compensation cases early so that the employee can beat the doctor and the company out of the opportunity to clear the employee to return to work at a job that no longer exists for that employee.
So, I hope that the information above helped to understand how FMLA works and how it interacts and dovetails with your sick and vacation time, the ADA accomodation laws and the worker's compensation laws.
Turning to your specific case, it sounds to me like the employer does NOT have a specific policy regarding at what point an employee can be terminated when they are out on FMLA leave (remember, the employer can choose to abide by the 12 weeks or the employer can keep the job open as long as they want). Under these circumstances, if your employer is not sticking to one specific clear policy regarding when the employee out on leave is to be terminated, then the employer is making a different decision in each specific case set before them and that decision can change from employee to employee to employee. By handling this issue in such a discretionary manner, your employer is probably setting itself up for charges of unlawful discrimination -- certain employees are protected against discrimination in the workplace due to their race, gender, age (over 40), disability, religion or sexual orientation and if the HR department or the supervisors who are making the decisions on who to terminate and who not to terminate because the employee is out on leave are either deliberately or subconsciously discriminating against the employee on leave for any one of these enumerated reasons and makes a decision to terminate an employee on leave because the employee is over 40 and close to retirement rather than for a completely unbiased across the board reason then the employer may end up getting into trouble.
In your situation, going out on workers compensation and/or being terminated will not affect your right to your pension (accumulation into the pension will stop from the time you stop contributing (upon termination) obviously -- but that is true everywhere). If your employer will not accomodate your medical issues and offer you a part time position or reduced hours, I am afraid that there is nothing you can do about that under the ADA (as I explained above). However, if you are then terminated because you cannot return to full time work and the employer chooses not to keep the job open for you, you might have a case of age discrimination if you are over 40 and nearing retirement and the employer has not firmly set policy on termination after FMLA leave -- you could file a complaint with the Equal Employment Opportunity Commission (EEOC) in your state and challenge your employers decision to terminate you IF you can show that the employer has held open jobs for younger employees in the past but then refused to hold your job open for you because of your age and status as being close to retirement. I am not saying the case would be a slam dunk -- but it would be worth the time to prepare and file a complaint with the EEOC if you can show instances where the employer had held the jobs open for younger employees well beyond the 12 week FMLA period and yet in your case, the employer decided to terminate you arbitrarily after XXXX weeks of being out of work and collecting worker;s compensation payments.
I hope that the legal summary herein and the examples that I have used clearly show you what actions you may or may not be able to take in the event you are terminated while out on worker's compensation injury.
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