We are often asked “Can I terminate someone who is out on Workers Compensation if I can’t hold the job open any longer?” The short answer is yes, but there are many legal considerations that you should take into account before making that decision.
Several laws come into play, as well your internal HR practice or policy. New York is an “employment at will” state. Under that legal doctrine, an employee can be terminated at any time for any reason. However, even in “at will” states, an employee should not be terminated for an unlawful reason: discrimination, whistle blowing or retaliation. Employees are legally protected against these acts by an employer.
Employers also need to comply with Family and Medical Leave Act (FMLA). A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one qualifying event.
Many Workers Compensation leaves also qualify as a Family and Medical Leave Act (FMLA) event. FMLA rights and obligations are separate and apart from those of the Workers Compensation system, so employers need to understand the interaction of both. Under FMLA law, an injured worker is entitled to up to twelve-weeks of job protected status which should run concurrently with Workers’ Compensation leave. If the leave has not been exhausted, the employee cannot be terminated. The safest scenario for employers is to separate termination from other employment events. Then it will appear to be in good faith, fair and equitable.
For more information on HR issues, please call Aisha Hartford, Director of Client Services for The Flanders Group at 800-462-6435.