Clients often have questions about termination while employees are out on workers comp and whether or not they have to hold their job open. The short answer is yes, you can proceed with termination but there are many legal considerations to take into account prior to making that decision. Several laws come into play, as well as the organizations’ internal HR practice or policy and, if applicable, a union contract.
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 an at will state, 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.
Employees with a written or implied contract cannot be terminated at will. Union members may also have protection and rights related to termination according to the union contract. In addition to a contract a “precedence” may have been set through a previous grievance disposition that may impact an interpretation of the contract.
Another law that needs to be taken into consideration is the Family and Medical Leave Act (FMLA). Many workers compensation leaves also qualify as a 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 workers is entitled to up to 12 weeks of job protected status which should run concurrently with WC leave. If the FMLA leave is not exhausted, the employee cannot be terminated. If the answer is no, then they can be terminated using caution and compassion.
Remember, it is not a good practice to terminate employees who are out with an injury or illness. If the employer can separate termination from other employment events, then it will more likely appear to be in good faith, fair, and equitable. For more information about HR practices and how they can impact your workers compensation insurance premium, contact The experts at The Flanders Group at 800-462-6435 or [email protected].