|Author||Subject: Re: Replaced!!1|
|Bladeder|| Posted At 12:23:44 07/19/2001
There are also alot of employers who do not know the law as well.
Generally, you cannot be fired while on workers comp or any other type of medical disability. Your employer should treat you the same as they would treat any other employee in the company who has a bona fide medical disability. Example: if somone became pregnant, would they fire her? Not legally. They normally must hold your position open for a certain length of time -- in most cases, 6 months [minimum] to one year. If they don't have a 'policy' in writing as to hold long this would be, a court would base any judgment on 'precedent' [i.e., how long has the company held jobs open for other employees with medical disabilities in the past].
If you're still out after 6 months or after any specified time per your company policies, your employer can legally replace you, however, if you are able to return to work after you've been replaced, employers are required to place you in a similar position at a similar salary level -- providing one exists. If no such position is available, they aren't required to create one, and at that point you would be entitled to unemployment benefits due to the reason that you are wanting to work, but can't -- through no fault of your own.
The thing that makes this tricky is that the laws vary somewhat from state to state [I'm from California], but more specifically, size of employer is a major factor. The laws were written so small employers [less than 50 employees] would not be put in difficult situations trying to hold a job open -- which would be more difficult for a small employer, than a large employer where chances are the work can be absorbed by someone performing a similar task.
You should check with you local State Employment office for the specific details as they relate to your state.
When I worked in the HR department of a hospital here in California and an employee would go out on workers comp and receive temporary benefits, we would hold their job open for a year before they were officially replaced. If they were subsequently able to return to work, we would look through our openings for a similar position. If one was not available, we would tell them such, but also tell them to check back at regular intervals. This is the employee's responsibility -- not the employers. The law doesn't "make" employers remember that this person is "out there" and needs to be considered for every opening that comes available. Only after they are informed that the employee is able to return to work, does the employer need to do a pro-active search of its open posiitons for a suitable one. We basically had to keep these people in "limbo" from that point forward because they were no longer technically employees, but if they did inquire about an open position, they needed to be given "preference." The employer was under no obligation to train the former employee for a position they were not qualified for, however, all things being equal, the former injured employee would be the applicant we would be required to select at any point after they were authorized to return to work.
Sorry for writing a book here -- it's an extremely complicated and unclear area of the law. The main thing to consider is the size of the employer with regard to how long they must hold your position open.