Employer asked employee to return to work, after surgery.

[Sway]

What is the name of your state (only U.S. law)? Calif.

Asking this question for my brother.

He had an accident at work that required surgery on his leg and will need to stay off of it for six to seven weeks. Surgery was today and he told me his boss (the owner) asked him if he could come in on Monday in a wheelchair. I told him not to do it, but he is afraid they will replace him if he takes the time off that he needs to recover 100%. I'm guessing if he does go in worker's comp will not pay any of his bills? Can they replace him if he doesn't go in? I just don't want to see my brother get hurt worse or lose his job. Any an all feed back will be appreciated.


Thank you for your time.

 

[Ladyback1]

What is the name of your state (only U.S. law)? Calif.

Asking this question for my brother.

He had an accident at work that required surgery on his leg and will need to stay off of it for six to seven weeks. Surgery was today and he told me his boss (the owner) asked him if he could come in on Monday in a wheelchair. I told him not to do it, but he is afraid they will replace him if he takes the time off that he needs to recover 100%. I'm guessing if he does go in worker's comp will not pay any of his bills? Can they replace him if he doesn't go in? I just don't want to see my brother get hurt worse or lose his job. Any an all feed back will be appreciated.


Thank you for your time.

If the treating Dr. releases your brother to work w/ restrictions, and the employer has a position that falls within the restrictions, your brother HAS to go to work. If your brother refuses alternate work position (that has been approved by physician) then Work Comp does not have to pay for his time away from work. They will still cover his medical bills (assuming that the claim is compensable.

Most states do not allow employers to terminate an injured worker for being unable to work.

 

[AnonUserName]

What is the name of your state (only U.S. law)? Calif.

Asking this question for my brother.

He had an accident at work that required surgery on his leg and will need to stay off of it for six to seven weeks. Surgery was today and he told me his boss (the owner) asked him if he could come in on Monday in a wheelchair. I told him not to do it, but he is afraid they will replace him if he takes the time off that he needs to recover 100%. I'm guessing if he does go in worker's comp will not pay any of his bills? Can they replace him if he doesn't go in? I just don't want to see my brother get hurt worse or lose his job. Any an all feed back will be appreciated.


Thank you for your time.

Does he have a doctors note listing his limitations through recovery? What type of work is his employer asking him to do and will the work contradict the doctors orders?

 

[cbg]

Are ALL of the following true?

1.) He has worked for this employer for more than 12 months
2.) The employer has more than 50 employees within 75 miles of his location
3.) In the 12 months immediately preceding his surgery, he worked a minimum of 1,250 hours

If so, he does have some protection and the answer above is not entirely correct.

 

[Sway]

I will have to ask him if the Doctor gave any kind of release for work, I just know he Doctor said he couldn't put any weight on his leg and had to keep it elevated for six to seven weeks. I know my brother, if he was told by the doctor he could return on light duty he would.

Are ALL of the following true?

1.) He has worked for this employer for more than 12 months Yes
2.) The employer has more than 50 employees within 75 miles of his location No
3.) In the 12 months immediately preceding his surgery, he worked a minimum of 1,250 hours Yes

If so, he does have some protection and the answer above is not entirely correct.

 

[ecmst12]

All of the provisions must be true in order for FMLA to apply, so it does not.

 

[Ladyback1]

Are ALL of the following true?

1.) He has worked for this employer for more than 12 months
2.) The employer has more than 50 employees within 75 miles of his location
3.) In the 12 months immediately preceding his surgery, he worked a minimum of 1,250 hours

If so, he does have some protection and the answer above is not entirely correct.

http://www.dir.ca.gov/InjuredWorkerGuidebook/Chapter6.pdf
explains in detail about RTW (return to work)

 

[Sway]

I just got off the phone with my brother. The doctor told him he can NOT return to work at this time. If things look good after the six-seven weeks he then can return on light duty.

 

[Antigone*]

I just got off the phone with my brother. The doctor told him he can NOT return to work at this time. If things look good after the six-seven weeks he then can return on light duty.

It appears to me from your prior answer that your brother is not protected by FMLA. His employer does not have to hold his position.

 

[LdiJ]

It appears to me from your prior answer that your brother is not protected by FMLA. His employer does not have to hold his position.

I agree that he is not protected under FMLA, however I thought that different rules applied to worker compensation situations...as he was injured on the job?

 

[swalsh411]

None that I am aware of. Once he is cleared to go back to work by the Dr, he should ask his employer if they have work available. if the answer is no, he should file for unemployment immediately.

 

[cbg]

Since the OP has not answered any of the questions regarding the criteria for FMLA eligibility, I don't know where you are getting the idea that FMLA does not apply. It may, it may not. Until the questions about size of employer, length of employment, and hours worked are answered, we do not know. The doctor's statements about how long he has to be out and when he can return have no bearing on whether or not the time he did take off is protected. Nor does whether or not the condition is work related.

State law cannot override Federal. IF FMLA applies, then he cannot be fired for the protected absence, regardlesss.

 

[LdiJ]

Since the OP has not answered any of the questions regarding the criteria for FMLA eligibility, I don't know where you are getting the idea that FMLA does not apply. It may, it may not. Until the questions about size of employer, length of employment, and hours worked are answered, we do not know. The doctor's statements about how long he has to be out and when he can return have no bearing on whether or not the time he did take off is protected. Nor does whether or not the condition is work related.

State law cannot override Federal. IF FMLA applies, then he cannot be fired for the protected absence, regardlesss.

See post number 5...he answered within the quote.

 

[cbg]

Ah, thank you. Not enough coffee this morning, I guess.

 

[commentator]

Yes, since FMLA does not apply, he does not have that option of protection.

He should emphasize to the doctor the type of work it is that he does, (if it's a tree surgery business, there's probably not going to do much he could do in a chair anyhow) and discuss with them the suitability of going to work in a wheel chair. He should remember the huge amount of difficulty he might have in going to work in a wheel chair....I've done it, and even if it's a desk job, a simple "handicap tag" on your vehicle isn't going to allow you to drive yourself there, get yourself out of your vehicle, get into the building, protect and elevate the leg as it should be cared for, use the restroom stalls, etc. He needs to consider all this before he allows the employer to bully him into trying to accept some kind of light duty in a wheelchair, even if the doctor would be agreeable to it after a few weeks.

I really, in this situation, would suggest that if the employer follows up on his threats to terminate, he have a consult with a worker's comp attorney familiar with CA law. It is usually quite illegal to fire someone in retaliation for filing a worker's comp claim. Firing him because he can't work while out on WC.....?

During the time he is off, if at any time he receives formal notice he has been terminated, your brother should file immediately for unemployment insurance ( a completely separate thing from worker's comp, which after the first week should pay him a percentage of his wage for the amount of time he is off before he is released to MMI or returns to work light duty.)

He would not be able to begin drawing unemployment until he is released by his doctor and is no longer receiving WC benefits. But f he is terminated, ihe needs to file the claim and get it set up immediately, That way the claim will stay in place at that amount for a year, even if he is off for any significant length of time, as broken legs sometimes require. I wish him great good luck with this situation.