I am looking for information for my boyfriend. He worked in a warehouse in New Jersey and hurt his back, he went out on worker's comp and was out for 8 weeks. At first it was a struggle to even get the worker's comp benefits, the owner of the company told him to just exhaust his vacation hours rather than going on worker's comp. But finally the company agreed to give him the benefit that he deserved. After about 7 weeks he got a letter from his insurance company that said his benefits were terminated. At the end of the 8th week he called his workplace to inform them that he was released from his doctor's care and was able to return to work. The owner of the company responded that they had hired two other people to fill his spot and that they did not want to take him back. Now is it illegal that he was terminated while he was still under the worker's comp care? And since it was such a short period of time aren't they required to take him back? It just doesn't seem fair to me that he was terminated because he got hhurt on the job. It seems that he was terminated without them even informing him since he got the letter in the mail from the insurance company without anyone from his work informing him that he would be terminated. Please help to find out what his legal rights are!
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Fired while on worker's comp
- Thread starter shall720
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Since he is healthy and released from a doctors care, he can now physically and legally begin his search for a new job. I also recommend that he makes an effort to stay on good terms with his previous employer, this way, when a potential employer calls to check on his work history, they provide a favorable recommendation for him.
cbg
I'm a Northern Girl
There is a difference between being fired BECAUSE he filed a workers comp claim, and being fired while still out on medical leave for a workers comp claim. One is not legal, the other might or might not be depending on the situation.
It is not legal to fire someone because they filed a workers comp claim. Ever. In any state. No matter what.
But, there is also no state and no situation where an employer is required to hold a job open indefinitely, either. Sooner or later there comes a time when the employer is allowed to cut the employee loose and hire someone who is able to come to work and get the job done, even if the absence is due to a workers comp claim.
Whether or not the employer had reached that point in THIS case is open to question. So what we need to know, if we're going to determine that, is:
1.) How long had he worked for this employer?
2.) In the last 12 months, had he worked at least 1,250 hours for this employer?
3.) How many employees does the employer have within 75 miles of his location?
4.) Read one way, he was out for 8 weeks. Read another way, he was out for 15 weeks. Which is it?
If you can answer these questions, we can tell you what, if any, recourse he has.
It is not legal to fire someone because they filed a workers comp claim. Ever. In any state. No matter what.
But, there is also no state and no situation where an employer is required to hold a job open indefinitely, either. Sooner or later there comes a time when the employer is allowed to cut the employee loose and hire someone who is able to come to work and get the job done, even if the absence is due to a workers comp claim.
Whether or not the employer had reached that point in THIS case is open to question. So what we need to know, if we're going to determine that, is:
1.) How long had he worked for this employer?
2.) In the last 12 months, had he worked at least 1,250 hours for this employer?
3.) How many employees does the employer have within 75 miles of his location?
4.) Read one way, he was out for 8 weeks. Read another way, he was out for 15 weeks. Which is it?
If you can answer these questions, we can tell you what, if any, recourse he has.
It is against the law to fire a disabled person before maximum medical improvement. After MMI and under the Americans for Disabilities Act, a disabled person can be terminated if he or she cannot perform the essential function of her job and there is no other available work within the employee's restriction.
That said, the previous is very simplistic and is not to be relied upon without further investigation of the facts.
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Really? Can you quote that?
A person would only qualify under the ADA if that disability was permanent and that indivudal can be terminated for other reasons other than not being able to perform the essential functions as in performance, attendance, etc.... The big question as cbg asked is if the OP was eligible for FMLA or not.
Hi cbg, in response to your questions...
1. He had worked at the job for 13 months prior to the injury.
2. He has worked over 1,250 hours in the past 12 months.
3. The employer has 12 other employess that are with 75 miles of the location.
4. He was out for a total of 10 weeks, it was during the beginning of the 10th week that he recieved the letter saying that his health care benefits had been terminated.
I believe that under the FMLA he is allowed 12 weeks time to recover before he can be terminated. So is there anything that can be done in this situation?
Thanks for taking the time to help us out!
1. He had worked at the job for 13 months prior to the injury.
2. He has worked over 1,250 hours in the past 12 months.
3. The employer has 12 other employess that are with 75 miles of the location.
4. He was out for a total of 10 weeks, it was during the beginning of the 10th week that he recieved the letter saying that his health care benefits had been terminated.
I believe that under the FMLA he is allowed 12 weeks time to recover before he can be terminated. So is there anything that can be done in this situation?
Thanks for taking the time to help us out!
Ozark_Sophist
Senior Member
I believe there needs to be 50 employees within 75 miles for FMLA provisions to attach. Check back.
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