Terminated while on workers compensation

Asked about 4 years ago - Brooklyn, NY

I was terminated while on workers compensation. Was not medically cleared to return to job as per comp physicians. Was told business demands need to be met, was not asked when I was planning to return or given an opportunity to apply for another position, is this legal and do they need to give me reason in writing??

Attorney answers (4)

  1. Victor Fusco

    Contributor Level 10

    Answered . Unfortunately it depends. Are you covered under the FMLA? that depends on how many employees your company has? Even if you are...your job is protected for not more than 12 weeks. If you are state or municiple worker (county, city, village), Section 71 of the Civil service law says employer can terminate you after 1 year. If you are a union member you have to look to see what is provided in your collective bargaining agreement. You should pursue your Workers Comp benefits and look for other employment within you very limited capabilities so that the compensation board doesnt find you removed from the labor market fro reasons other than your disability.

    Some info re: FMLA:

    Benefits for Employees Mandated by the Law
    To qualify for the FMLA mandate, a worker must be employed by a business with 50 or more employees within a 75-mile radius of his or her worksite, or a public agency, including schools and state, local, and federal employers (the 50-employee threshold does not apply to public agency employees and local educational agencies). He or she must also have worked for that employer for at least 12 months (not necessarily consecutive) and 1,250 hours within the last 12 months.

    The FMLA mandates unpaid, job-protected leave for up to 12 weeks a year:

    to care for a new child, whether for the birth of a son or daughter, or for the adoption or placement of a child in foster care;
    to care for a seriously-ill family member (spouse, child or parent);
    to recover from a worker’s own serious illness;
    to care for an injured servicemember in the family; or
    to address qualifying exigencies arising out of a family member’s deployment.
    The FMLA further requires employers to provide for eligible workers:

    Restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility.
    Protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave.
    Protection of the employee to not have their rights under the Act interfered with or denied by an employer.
    Protection of the employee from retaliation by an employer for exercising rights under the Act.
    [edit] Non-eligible workers and types of leave
    The federal FMLA does not apply to:

    workers in businesses with fewer than 50 employees (this threshold does not apply to public agency employers and local educational agencies);
    part-time workers who have worked less than 1,250 hours within the 12 months preceding the leave and a paid vacation;
    workers who need time off to care for seriously ill domestic partners, children of domestic partners or seriously ill elderly relatives or pets;
    workers who need time off to recover from short-term or common illness like a cold, or to care for a family member with a short-term illness; and
    workers who need time off for routine medical care, such as check-ups

  2. Victor Fusco

    Contributor Level 10

    Answered . Unfortunately it depends. Are you covered under the FMLA? that depends on how many employees your company has? Even if you are...your job is protected for not more than 12 weeks. If you are state or municiple worker (county, city, village), Section 71 of the Civil service law says employer can terminate you after 1 year. If you are a union member you have to look to see what is provided in your collective bargaining agreement. You should pursue your Workers Comp benefits and look for other employment within you very limited capabilities so that the compensation board doesnt find you removed from the labor market fro reasons other than your disability.

    Some info re: FMLA:

    Benefits for Employees Mandated by the Law
    To qualify for the FMLA mandate, a worker must be employed by a business with 50 or more employees within a 75-mile radius of his or her worksite, or a public agency, including schools and state, local, and federal employers (the 50-employee threshold does not apply to public agency employees and local educational agencies). He or she must also have worked for that employer for at least 12 months (not necessarily consecutive) and 1,250 hours within the last 12 months.

    The FMLA mandates unpaid, job-protected leave for up to 12 weeks a year:

    to care for a new child, whether for the birth of a son or daughter, or for the adoption or placement of a child in foster care;
    to care for a seriously-ill family member (spouse, child or parent);
    to recover from a worker’s own serious illness;
    to care for an injured servicemember in the family; or
    to address qualifying exigencies arising out of a family member’s deployment.
    The FMLA further requires employers to provide for eligible workers:

    Restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility.
    Protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave.
    Protection of the employee to not have their rights under the Act interfered with or denied by an employer.
    Protection of the employee from retaliation by an employer for exercising rights under the Act.
    [edit] Non-eligible workers and types of leave
    The federal FMLA does not apply to:

    workers in businesses with fewer than 50 employees (this threshold does not apply to public agency employers and local educational agencies);
    part-time workers who have worked less than 1,250 hours within the 12 months preceding the leave and a paid vacation;
    workers who need time off to care for seriously ill domestic partners, children of domestic partners or seriously ill elderly relatives or pets;
    workers who need time off to recover from short-term or common illness like a cold, or to care for a family member with a short-term illness; and
    workers who need time off for routine medical care, such as check-ups

  3. Victor Fusco

    Contributor Level 10

    Answered . Unfortunately it depends. Are you covered under the FMLA? that depends on how many employees your company has? Even if you are...your job is protected for not more than 12 weeks. If you are state or municiple worker (county, city, village), Section 71 of the Civil service law says employer can terminate you after 1 year. If you are a union member you have to look to see what is provided in your collective bargaining agreement. You should pursue your Workers Comp benefits and look for other employment within you very limited capabilities so that the compensation board doesnt find you removed from the labor market fro reasons other than your disability.

    Some info re: FMLA:

    Benefits for Employees Mandated by the Law
    To qualify for the FMLA mandate, a worker must be employed by a business with 50 or more employees within a 75-mile radius of his or her worksite, or a public agency, including schools and state, local, and federal employers (the 50-employee threshold does not apply to public agency employees and local educational agencies). He or she must also have worked for that employer for at least 12 months (not necessarily consecutive) and 1,250 hours within the last 12 months.

    The FMLA mandates unpaid, job-protected leave for up to 12 weeks a year:

    to care for a new child, whether for the birth of a son or daughter, or for the adoption or placement of a child in foster care;
    to care for a seriously-ill family member (spouse, child or parent);
    to recover from a worker’s own serious illness;
    to care for an injured servicemember in the family; or
    to address qualifying exigencies arising out of a family member’s deployment.
    The FMLA further requires employers to provide for eligible workers:

    Restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility.
    Protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave.
    Protection of the employee to not have their rights under the Act interfered with or denied by an employer.
    Protection of the employee from retaliation by an employer for exercising rights under the Act.
    [edit] Non-eligible workers and types of leave
    The federal FMLA does not apply to:

    workers in businesses with fewer than 50 employees (this threshold does not apply to public agency employers and local educational agencies);
    part-time workers who have worked less than 1,250 hours within the 12 months preceding the leave and a paid vacation;
    workers who need time off to care for seriously ill domestic partners, children of domestic partners or seriously ill elderly relatives or pets;
    workers who need time off to recover from short-term or common illness like a cold, or to care for a family member with a short-term illness; and
    workers who need time off for routine medical care, such as check-ups

  4. John Eiler Goodwin

    Contributor Level 12

    Answered . If you were a Federal civilian employee receiving workers' compensation for disability when you were terminated, you would continue receiving time loss benefits at 3/4 of your salary tax free and there is no ceiling on the amount of compensation you can receive or the length of time you can receive time loss compensation. The compensation will continue until you recover or die or until the employer rehires you and provides a light duty job or until the OWCP issues an LWEC determination.

    As someone who worked for the OWCP as a claims examiner for 12 years, I often encouraged employers to terminate severely impaired workers and hire replacements. I could do so in good conscience because I knew that I would be able to provide the injured employee an income replacement and retraining if needed and medical care.

    It may be to your advantage to fight the termination. It may be to your advantage to let the termination go through and stay on OWCP's time loss compensation. The decision would be fact specific. You need to obtain advice from an employment law attorney or from your union steward.

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