Question for HR people

[disneychrista]

The statute of limitations on filing has not run. In other words, the employee might still file for Workers' Compensation benefits. The HR specialists who are advising the company to tread carefully and to document all actions are spot on.

No one is questioning that but how can it be viewed as retaliation for something that hasn't happened?

 

[SMD]

There was a case in Ohio where an employee was fired after getting injured at work, but before they could file a WC claim. The case went to the Supreme Court and they agreed that there is no gap between an injury and a claim where you can fire someone in a way that would be retaliatory once the claim is filed. Plus, even if you've consulted with multiple attorneys and are sure you're 100% on solid ground, a fired employee could still make a claim for retaliation and force you to defend it. Having as much documentation as possible is to the employer's benefit for a quick resolution.

 

[Arielle22]

The employees has informed the employer of a potential w/c claim. there doesn't have to be an actual claim filed for a retaliation claim. The employee can say they expected the company to file the claim since it was informed.b Any time an employee states they were injured on the job, it is in the company's best interests to follow through with reporting the claim and having the carrier investigate the claim.

Employee may not succeed with their retaliation claim but the company would spent time and money fighting the claim.

Eliza my company is a small business which operates in several states. I handle all labor issues and complaints. I have worked in HR for 13 years and have seen this types of issues.

 

[Dread Pirate]

Since the company is so small, FMLA does not apply. I would send her a letter that she needs to contact the company by a certain date, in a week, and send the letter to her certified return receipt requested. If she does not pick up the letter from the post office, and it is returned to you, DO NOT OPEN IT. Keep it sealed to use as proof of what was sent to her in case that is ever needed in Court.

Then, if she does not get in touch with you, or does not pick up the letter, send her another certified letter terminating her employment.

Sue her in small claims court for the equipment.

There is a legal forum at freeadvice dot com that you can ask questions on. Commentator is the HR expert.

 

[disneychrista]

Since the company is so small, FMLA does not apply. I would send her a letter that she needs to contact the company by a certain date, in a week, and send the letter to her certified return receipt requested.

I was always told to send it through regular postal mail in addition to the certified, return receipt and to keep a copy of the letter sent, along with date sent.

 

[disney1990]

My company is VERY small. We only employ 17 people at this time.

A few days before Christmas, one of the employees left work early without telling anyone. Then, the next day she sent a fax saying she was taking a leave of absence due to work-related stress.

We've made many attempts to reach her by phone (she is still in possession of a company-owned phone) to talk about this. She will not answer or return any calls. So, we sent her a letter indicating we want her to come back into the office after the New Year to discuss any issues she may have. We are willing to listen to any issues she wants to discuss.

My question is this: if she fails to contact us within a reasonable time following the 1st of the year, or fails to return the phone (or any other materials she may have), we will consider this job abandonment and terminate her. But, how do we go about getting our property back? Any thoughts?

Did she include a doctor's note with the fax? I would send a return receipt letter to her informing of that you need a note from her doctor stating that she needs to be out of work and the estimated return to work date.

FMLA is Federal, but there are also different state requirements, some don't even require a minimum number of employees: http://www.ncsl.org/research/labor-and-employment/state-family-and-medical-leave-laws.aspx

 

[eliza61]

The employees has informed the employer of a potential w/c claim. there doesn't have to be an actual claim filed for a retaliation claim. The employee can say they expected the company to file the claim since it was informed.b Any time an employee states they were injured on the job, it is in the company's best interests to follow through with reporting the claim and having the carrier investigate the claim.

Employee may not succeed with their retaliation claim but the company would spent time and money fighting the claim.

Eliza my company is a small business which operates in several states. I handle all labor issues and complaints. I have worked in HR for 13 years and have seen this types of issues.

Oh I totally believe it but what I was asking was when did the op said the employee filed for workers comp.

Like I said, my company is huge so we document out the wazoo. we haven't lost a workmans comp proceeding in the entire year I've been here and if the others are to believe it's been way over 20 years since we have, simply because we do so strenuously document every thing.

Now I also have to say that we have excellent benefits (job retraining, mental health benefits, onsite mental health professionals, etc etc) so any litigation from employees usually takes a very long time.

What I am saying is I'm going from the op's original post. employee simply walked off the job. a few days later she said she needs to take a leave of absence due to stress. She did not report anything but instead sends in a fax.
She has been totally non responsive to all efforts to contact her.

How does that equal some type of workman's comp?

Are you saying that in your company and nondescript fax is proof of injury??? she does not say what or if she has an injury, what symptons of stress she is exhibiting, nothing. all she stated is that she's stress. big whooo. I get stressed every day from driving I-95 is that sufficient in your company to claim disability?

lol, I'm simply saying my company requires a whooooooole lot more than that.

Now like I said, I probably have it a bit easier than you, we've got a whole bunch of suits running around in a very large legal department, we also have a complete medical facility on site so it's a bit easier for us to handle our cases so it is a bit different. we don't settle any cases.

 

[Arielle22]

Oh I totally believe it but what I was asking was when did the op said the employee filed for workers comp.

Like I said, my company is huge so we document out the wazoo. we haven't lost a workmans comp proceeding in the entire year I've been here and if the others are to believe it's been way over 20 years since we have, simply because we do so strenuously document every thing.

Now I also have to say that we have excellent benefits (job retraining, mental health benefits, onsite mental health professionals, etc etc) so any litigation from employees usually takes a very long time.

What I am saying is I'm going from the op's original post. employee simply walked off the job. a few days later she said she needs to take a leave of absence due to stress. She did not report anything but instead sends in a fax.
She has been totally non responsive to all efforts to contact her.

How does that equal some type of workman's comp?

Are you saying that in your company and nondescript fax is proof of injury??? she does not say what or if she has an injury, what symptons of stress she is exhibiting, nothing. all she stated is that she's stress. big whooo. I get stressed every day from driving I-95 is that sufficient in your company to claim disability?

lol, I'm simply saying my company requires a whooooooole lot more than that.

Now like I said, I probably have it a bit easier than you, we've got a whole bunchi of suits running around in a very large legal department, we also have a complete medical facility on site so it's a bit easier for us to handle our cases so it is a bit different. we don't settle any cases.

OP said employee stated it was work related stress. That makes it a first report of injury. You do have it easier than me. My sites only have a handful of people at each and we can't accommodate temporary restrictions.

If OP terms before getting a denial of w.c. Claim, the company won't have leverage to try Nd get the employee back to work. That makes for an expensive claim.

 

[eliza61]

OP said employee stated it was work related stress. That makes it a first report of injury. You do have it easier than me. My sites only have a handful of people at each and we can't accommodate temporary restrictions.

If OP terms before getting a denial of w.c. Claim, the company won't have leverage to try Nd get the employee back to work. That makes for an expensive claim.

Fascinating. so you are saying that in your company a non descriptive fax (which hasn't been verified to be even sent by employee) is sufficient to say she reported an injury?? (that's a question, I'm fascinated by how different companies are run).
Could they stay out for 6 months and you still would not terminate them? all off of a fax? (serious question, l definitely don't have your years of experience).


Ok so every year our employees have to sign certain documents as part of their employment, one of them is what we call an Occupational injury or illness leave with pay notification.

It pretty much covers FMLA, workers comp, and military leave (not sure why we lump that in).
Anyhoo it's mainly informative and one of the first chapters is documentation.\

the first line reads:

In order to receive benefits under this plan, the Company requires that you cooperate with Integrated Health Services (IHS). You must respond to inquiries and examinations that IHS deems necessary in order to ascertain your condition. You are also required to cooperate with the Company's vendor for Workers' Compensation

In then goes on to say what type of communication is acceptable or not.

So we would definitely argue that the employee never reported any injury especially since she did not respond to IHS and that there was no verification from employee that the fax was sent by her.


do your employees have to fill out a WHD 1420??

 

[SC Minnie]

I work for a Fortune 500 company too. One of my direct reports requested a leave due to stress last year. The leave was granted for 2 weeks without pay. He was given the number for the EAP and encouraged to use it.

Our HR dept went through this allowing the 2 week leave without pay to cover ourselves. This was not a good employee to begin with and we were making steps to terminate anyway. We had to go through the motions so there could be no retribution to the company by him saying we made him work when he was 'ill'.

OP you need to seek professional advice in your state as each state differs on employment laws. But a question, does your company have a handbook? If so, does it state steps required if unpaid leave is needed? This employee may also get a dr to write them our under short term disability. You need to tread lightly and make sure all i's are dotted and t's crossed.

 

[Arielle22]

Fascinating. so you are saying that in your company a non descriptive fax (which hasn't been verified to be even sent by employee) is sufficient to say she reported an injury?? (that's a question, I'm fascinated by how different companies are run).
Could they stay out for 6 months and you still would not terminate them? all off of a fax? (serious question, l definitely don't have your years of experience).


Ok so every year our employees have to sign certain documents as part of their employment, one of them is what we call an Occupational injury or illness leave with pay notification.

It pretty much covers FMLA, workers comp, and military leave (not sure why we lump that in).
Anyhoo it's mainly informative and one of the first chapters is documentation.\

the first line reads:

In order to receive benefits under this plan, the Company requires that you cooperate with Integrated Health Services (IHS). You must respond to inquiries and examinations that IHS deems necessary in order to ascertain your condition. You are also required to cooperate with the Company's vendor for Workers' Compensation

In then goes on to say what type of communication is acceptable or not.

So we would definitely argue that the employee never reported any injury especially since she did not respond to IHS and that there was no verification from employee that the fax was sent by her.


do your employees have to fill out a WHD 1420??

Our employees fill out an accident report. However an employee can go directly to the state and report an accident. I have had employees get let go (reduction in force). Two weeks later the employee get an attorney then claims an injury. Employee alleges that it was reported to the manager and the manager refused to file a report.

If I had an employee send in a fax stating work stress, I would do what I mentioned earlier. I would send a letter via FedEx with required signature giving the employee a deadline to call and speak only to me. I would tell the employee that if I do not receive a call, her employment would be terminated.

If I didn't receive a call I would send another letter stating the employee is termed. I would also include a line that if the employee feels the term is in error to contact me.

It is possible the employee has been hospitalized and is unable to respond to the OPs calls.

As for leave, since we are not covered under FMLA we allow a maximum of 6 weeks leave (paid or unpaid). However the leave does have to be approved by me.

The company can make rules and then make the argument that employee didn't follow procedure. That doesn't mean the state or even your carrier is going to agree. The state and carrier don't care what you say must be done. The only steps that must be taken are the ones written into law.

It is cleaner and more defensible for the company to take her claim at face value and move forward as the company normally does for a w/c claim. I have had employees claim work stress but not cooperate when w/c calls about the claim. The claim is denied and the employee can't claim we ignored her report.

 

[DebbieB]

She said she was taking "leave". Sick leave? Do you have a disability insurance carrier? If so, let them handle it.

 

[TheIncredibles!]

What is your company policy for unpaid leave? I would consider this employee to be on an unpaid leave of absence until you get further information.

 

[Gumbo4x4]

Not debating the situation, nor disputing any of the CYA that needs to take place here.

OTOH, I find it a bit amusing (and sad) that all this needs to take place when an employee sends in a fax that basically says, "My job is too hard for me, and I'm not going to be doing it for a while".

 

[lovesmurfs]

Not debating the situation, nor disputing any of the CYA that needs to take place here.

OTOH, I find it a bit amusing (and sad) that all this needs to take place when an employee sends in a fax that basically says, "My job is too hard for me, and I'm not going to be doing it for a while".

Agree. There have been times I'd love to have done that!

 

[eliza61]

Not debating the situation, nor disputing any of the CYA that needs to take place here.

OTOH, I find it a bit amusing (and sad) that all this needs to take place when an employee sends in a fax that basically says, "My job is too hard for me, and I'm not going to be doing it for a while".

totally eye opening for me.

I have serious empathy for the small business owner. to think that an employee could skip town for two weeks to celebrate Christmas and then say she is to overstressed and still get paid, without so much as a cocktail napkin note from a doctor is mind boggling.

NO way, no how could that work with my company. I don't have that much experience in hr, a little over a year but heck you can't call out sick at my job without speaking directly with your manager or the Administrative assistant and if you are two sick to call in, the person calling in has to give up a bunch of information stating who they are and their relationship to the employee.

I just can't imagine not working for a few weeks, no phone call, no nothing except an initial fax and still expecting to have a job.

I wonder how much fraud companies have to deal with due to this.

 

[SMD]

totally eye opening for me.

I have serious empathy for the small business owner. to think that an employee could skip town for two weeks to celebrate Christmas and then say she is to overstressed and still get paid, without so much as a cocktail napkin note from a doctor is mind boggling.

NO way, no how could that work with my company. I don't have that much experience in hr, a little over a year but heck you can't call out sick at my job without speaking directly with your manager or the Administrative assistant and if you are two sick to call in, the person calling in has to give up a bunch of information stating who they are and their relationship to the employee.

I just can't imagine not working for a few weeks, no phone call, no nothing except an initial fax and still expecting to have a job.

I wonder how much fraud companies have to deal with due to this.

I know there is fraud, but there are probably just as many instances where a company has policies that don't follow their state laws, and the employee isn't savvy enough to know that they were protected. It's a complicated 2 way street.