If an employee applied for FMLA due to a non-work related injury can she be terminated?
The employee injured herself outside of work and requested for FMLA due to surgery and recovery. Unfortunately, a couple days before her FMLA exhausted, she informed her manager that her MD wrote her off for another month or so. The nature of her job has physical requirements and since her injury her physical therapy after the surgery injured her more. And to add to the fire her job performance was going downhill months before her injury. We’ve searched the web to find literature on this but nothing was found.. Anyone have advice?
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Looks like any leave beyond the FMLA limit is governed by whatever is in her work contract.
Think you have to assume that as an MD has written her off, her case is genuine.
You could offer to let her do non-physical work and demand an immediate return I guess. You’ll probably find shes ready to quit the job anyway, and may be trying to get a few pay packets under her belt on the sick before she does this.
Please refer to the Federal Medical Leave Act in the Department of Labor website (www.dol.gov/esa/whd/fmla/ ), and review the Standard Operating Procedures issued by your company on this issue. Remember that SOPs cannot override any part of the law itself. If I remember correctly, FMLA provides a 12 week period, and after that, employers are not required to take employee back. In this case, it sounds as a different possition may have been offered to the employee in question if unable to perform his/her usual duties requiring physicall abilities. Job performance may, in itself, be grounds for termination if the appropriate paperwork was filed when said performance was observed.
You can apply for FMLA for medical leave regardless if it is a work related injury or not. So based on that alone I would say NO but it also depends on the employment laws in your state. You may want to visit the link I gave below where it list the eligibility requirements and so forth. I don’t know what state you are in but in TN you can be fired for no reason whatsoever.
You are entitled to 12 weeks. Anything beyond 12 weeks is up to the employer. So yeah, that was legal.
http://www.dol.gov/elaws/esa/fmla/faq.asp
Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” no longer have FMLA protections of leave or job restoration
Its close to the bottom, maybe 4 or 5 questions up from the bottom
If her performance was going downhill before her injury, did she get a written evaluation?
If so, sadly, she probably won’t have a legal case against them. She should apply for unemployment or temporary disability.
Most companies (and the federal government) have no obligation to retain you past the periods covered by sick leave, FMLA and FEFLA unless you are under a contract that states otherwise.
Your next step is going to be governed in part by what your company
policies are. Once the FMLA expires, you are no longer obligated to
follow the same protections. Does your company have any personal or
medical leaves that are offered in addition to FMLA? If so, then
follow those procedures. If not, you’ll also want to be careful
that her condition is not falling under ADA. If so, it has been
mentioned that a request for an additional month of leave may be
considered a reasonable accomodation. If you have the option, I
would also get legal counsel involved to make sure you aren’t
opening yourself up to FMLA retaliation lawsuits or ADA lawsuits.
Good luck!
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