Employee on medical leave without documentation

[scs-]

What is the name of your state (only U.S. law)?PA
We have an employee (day porter/checks and restocks restrooms and coffee stations in an office building) that sent a letter from her doctor a month ago stating she was seen for tendonitis and that she should avoid using this particular arm. She said she needed at least six weeks off and began that day. We sent her a WH-380-E (from the FMLA) to be filled out by her doctor. She sent one back to us, however she filled it out herself (he signed one that was only partially filled out, she said she filled it out because she "didn't think he would have the time to do it himself"). Of course it said she was unable to work at all. We asked her doctor's office to send one filled out by her doctor, that version said that she was to limit use of the arm to "no lifting, pushing, or pulling" for 13 weeks (FMLA no longer applies). Her duties are able to be done with one arm. We have allowed her leave to this point, but she refuses to even talk to us about coming back saying that she cannot because her "other arm will hurt". She was denied for Workman's Comp twice now and has gotten a lawyer. The lawyer said he will speak with her and her doctor and if the three of them agree, only then will she come back to work. I should also mention that she has already applied for unemployment compensation and welfare benefits. She has not yet been let go, however, my question is, can we terminate her employment for 1. for altering the WH-380-E document, 2. being on leave without a doctor's excuse/refusing to work? We would prefer to not contribute to paying her unemployment compensation.

 

[OHRoadwarrior]

Many times, a doctor will not want to fill out a form totally and has staff or a patient fill in all but the reason and signature areas. I would honor the 13 weeks. Send her a certified letter, during week 12, advising her she must return the day after her 13 weeks is over or she is terminated. You are not required to give a reason for the termination and you will not face an FMLA lawsuit. She will have time to play her WC games and the termination will be 100% legal, so she cannot collect UI.

 

[ecmst12]

There is no legal basis behind OHR's advice. I would wait to get a response from someone that actually has a clue about employment law.

How long has the employee been off at this time?

 

[OHRoadwarrior]

It is always best to be conservative in your approach, when the employee has a case with no merit AND an attorney. Logic dictates the attorney is a friend or relative and thus, even a frivolous suit has potential. Cases like that often get settled on the basis of the payoff being cheaper than the attorney cost to fight the lawsuit. I do have experience with being sued frivolously for over 3 million dollars.

There is no legal basis behind OHR's advice. I would wait to get a response from someone that actually has a clue about employment law.

How long has the employee been off at this time?

 

[cbg]

So according to her doctor, she is able to work as long as she does not use that arm? And she has duties that can be accomplished with one arm?

 

[swalsh411]

the termination will be 100% legal, so she cannot collect UI.

Whether or not a termination was lawful is not the determinant in whether or not a former employee will qualify for unemployment. In fact in most regards it's entirely irrelevant because the unemployment office is not the forum to settle wrongful termination claims.

If this person is terminated due to not returning to work after the 12 weeks of protected leave, they can establish a claim and then, assuming they qualify financially, begin to claim benefits them once the have a doctors release to return to work AND their old employer no longer has a job for them. This unemployment claim will be charged to their most recent employer.

Stick to what you know please.

 

[OHRoadwarrior]

Whether or not a termination was lawful is not the determinant in whether or not a former employee will qualify for unemployment. In fact in most regards it's entirely irrelevant because the unemployment office is not the forum to settle wrongful termination claims.

If this person is terminated due to not returning to work after the 12 weeks of protected leave, they can establish a claim and then, assuming they qualify financially, begin to claim benefits them once the have a doctors release to return to work AND their old employer no longer has a job for them. This unemployment claim will be charged to their most recent employer.

Stick to what you know please.

I suggest you read what I said again, before jumping up to be the professional. If the 12 week FMLA period has expired, employer sent her a letter to return to work and she fails to do so, she can be terminated for being absent. She will not collect UI for skipping work. I have enough years of management experience behind me to know the methods to properly terminate an employee without recourse. She was not available for work. Just as the FMLA paperwork issue appears to be a set up on her part, two can play the game. As the saying goes, a trial is where 12 people sit down in a courtroom and decide who has the best lawyer.

 

[scs-]

How long has the employee been off at this time?[/QUOTE]

So according to her doctor, she is able to work as long as she does not use that arm? And she has duties that can be accomplished with one arm?

Since July 15th, and you are correct CBG

 

[cbg]

Then you are quite safe in terming her for reason #2 (I'd leave #1 alone). However, it will not be up to you whether she gets unemployment. You can contest, but the state, and no one but the state, will make that decision. I will leave it to Commentator to determine the likelihood of her being approved.

 

[scs-]

I would like to thank everyone for your vital input, I will take all of your information to the owner and I believe we will feel much more comfortable taking the next step.
Thanks again for all of your time!

 

[swalsh411]

I suggest you read what I said again, before jumping up to be the professional. If the 12 week FMLA period has expired, employer sent her a letter to return to work and she fails to do so, she can be terminated for being absent. She will not collect UI for skipping work. I have enough years of management experience behind me to know the methods to properly terminate an employee without recourse. She was not available for work. Just as the FMLA paperwork issue appears to be a set up on her part, two can play the game. As the saying goes, a trial is where 12 people sit down in a courtroom and decide who has the best lawyer.

If you're terminated for being out beyond the 12 weeks of protected leave, then sometime after that get a doctors release to return to work, and your employer has no work for you, you can collect UI unless there is some other disqualifying factor.

 

[OHRoadwarrior]

If you're terminated for being out beyond the 12 weeks of protected leave, then sometime after that get a doctors release to return to work, and your employer has no work for you, you can collect UI unless there is some other disqualifying factor.

Notice I said to send the employee a certified letter requesting them to return to work. Obviously, that is the last thing this woman wants, because it will tank her legal games. I am not trying to get into an argument with the HR experts. You are attempting to present the facts. I am presenting how to deal with a person that has a lawyer friend and is trying to screw the boss or the system for money. The methods are slightly different.

 

[commentator]

As I have said before here on many occasions, unemployment benefits are for those who are out of work "through no fault of their own." If this person was released by her doctor to return to work, and she refused to return, even though you were asking her to and offering her the light duty recommended in the doctor's statement, then she is the one who has refused to return to work. You haven't fired her.

It is not necessary for you to formally fire her. It is not necessary you send her a certified letter requesting she return to work. Just answer the unemployment inquiries saying that according to the medical statements you received from the claimant, (include copies) she was released, and refused to return to work when you asked her to do so on such and such date. You don't need certified proof you asked her, just your statement will suffice. She may have a lawyer friend, but many lawyers don't know a whole lot about how unemployment works either.

You should not and need not fire her for absenteeism, as that would be like firing her when she was on sick leave under a doctor's care. As swalsh pointed out, the employer may do this, but the person will probably be approved for unemployment benefits, as being off sick is NOT considered misconduct. An employer can always legally fire you for being off work longer than FMLA allows, but then when the employee is released to return to work, they are able to get unemployment benefits, as the unemployment system thinks you cannot avoid being sick.

But this doesn't sound like what has happened. How far along are you in the unemployment claim? Have you responded yet? If not, go on and send them the medical documentation she has provided you with a detailed description of the times you have spoken with this person and how she has refused to return to work, even though you said you had light duty work available for her. You don't need to formally fire her. In a sense, she has quit, because you had asked her to come back, and she has refused, and it is NOT because she was on medical leave, as the doctor had released her to light duty.

If she is approved for unemployment benefits, she must be able and available before she can begin drawing them. If you get a notice she has been approved, NOT just that she has filed a claim, you immediately ask for an appeal. Do the hearing. Describe what has happened in this situation, what medical papers she has provided you. They can see if the papers appear to be faked. Don't worry about it affecting your worker's comp issues with her. In the first place it doesn't sound like she has a worker's comp case that is going to make. And even if it does,unemployment insurance decision information does not get shared with any other agency.

As for welfare, that is based on family income, whether she's out of work through no fault of her own, and several other factors. They usually insist that a person sign up for unemployment and see if they qualify when applying for assistance. If she is approved for unemployment, that income will affect her eligibility for food stamps and other public assistance. Many times if they find that the person is out of work because of their own choice, they are sanctioned and cannot receive public assistance for a period of time.