Not My Normally Asked Question

posted in: BRSA Member News | 0

Most of the questions that I am asked, either at work or from someone from the outside work community, pertain to something safety related, or to the environment, or to shipping DOT hazardous materials or to some kind of training requirements.  Last week I had a call that the subject was a little different. I had a phone call with a question about labor law….specifically about terminating an employee after there was an injury.  Usually I’d pass this off to a Human Resources person but I didn’t this time. I told the caller what I knew, with the caveat that I’m sure that there’s more here and that they should confirm what I say before making the decision to terminate .  The following is what I was told.

 

About two months ago there was a questionable upper arm injury at a local manufacturing plant.  The person was taken to an Occupational Physician and the doctor there confirmed that this person had suffered a work related injury and that he needed to have a work restriction.  At the time of the call, the person still had not returned to work and will now need surgery.  The company’s policy is that they have the option after a person uses up all of their earned “personal time off” that they MAY terminate them.  The caller asked me “is there a state WC law or any law that tells the employer how long an employee must be kept on the payroll before he can be terminated after an injury such as the one just described?”

 

"Here’s my answer.  It will depend on some specifics, such as how many employees you have.  The federal Family and Medical Leave Act (FMLA), for example, applies to private employers with at least 50 employees.  Which is the situation with this example.  Therefore, assuming you are a private employer, if you have 50+ employees, the employee could have the right to up to 12 weeks of job-protected leave.

 

The employee could also have protections under the federal Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees.  The ADA requires employers to provide reasonable accommodations to known disabilities of employees.  Providing leave beyond FMLA leave has been seen as a reasonable accommodation.

 

John Sutton, CSP and CHMM