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  1. #1
    Join Date
    Aug 2007
    Location
    Ohio
    Posts
    6

    Default What To Do If My Employer Won't Take Me Back

    Hello,
    I am new to the forum and have some WC questions. I live in Ohio.
    I injured my left elbow at work this past January. In March I had surgery to repair the damage. Therpy lasted through the end of May. At that time I was released to return to work with the permanet restriction of no repetitive motion. The company (self-insured) denied the claim and I was let go the second week of May after having used up all my sick days. I have my first WC hearing this week.
    My WC attorney has told me that even if we win, it will be up to the company as to wether they will take me back or not. I thought the company had to make reasonable accommodations for me as long as it
    would'n cost them too much. My attorney's concern is to get the claim allowed. He said they do not deal with much outsde of that. Who would I contact about new training If I can't get back with the company?

    Thank You,

    Happytobehere

  2. #2
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: Reemployed

    Happy, your attorney is right. the MAIN priority is to get your claim ACCEPTED. You STILL have plenty of time to deal with the FEHA/ADA laws.

    HOWEVER, whether your claim is accepted OR NOT, IF your Doctor DOES return you to work with restrictions, then YOU let your employer (ER) know IN WRITING, that you are evoking the "interactive process". You see, under FEHA/ADA laws, they don't CARE if your "perceived impairment"/disability is work-related OR NOT. The FEHA/ADA is there to protect ANYONE with a disability, REGARDLESS of CAUSE.

    The 'interactive process" is so you and your ER/HR can DISCUSS how you can be reasonably accomodated so that you can perform the essential duties of your job. The ER must PROVE that the accomodation would impose an "undue hardship".

    If you aren't able to return to your usual and customary job, then the ER must exercise good faith and 'due diligence' in order to see if there are any OTHER jobs within the company that you could perform with reasonable accomodation.

    You want to put your request IN WRITING and mail it Certified Return Receipt Requested, and in your letter, ask that your ER respond to YOU in writing. This way, you will have the DOCUMENTATION if they REFUSE your request for the interactive process.

    Even IF they grant your request, you DOCUMENT EVRTHING THAT IS SAID IN THE DISCUSSIONS. Your Er just might be making up a WHOLE lot of "excuses" that might NOT hold up in Court. You need to DOCUMENT date/time/witnesses/statements made in your private Daily Journal of "events".

    SAME HOLD TRUE IF YOU GO BACK TO WORK! DOCUMENT EVERTHING that does NOT conform to your work restrictions (ER pressuring you to be on the computer for HOURS, or lifting more than your Doc says you can lift) and so forth, and any disparaging remarks about "how slow you are" or other remarks that negatively reflect on your perceived impairment/disability and the WAY you are trying to do your job.

    In addition, your ER can NOT retaliate, harass, threaten termionation or terminate you BECAUSE you filed a WC claim. That is ILLEGAL under WC laws. ANOTHER important reason to DOCUMENT your Er's statements/action, etc.

    Let your attorney work on getting your claim ACCEPTED, and the rest will "fall into place". Even if your WC claim is NOT accepted, it does NOT get your ER off the hook for having FILED one, should they try to harass, retaliate, threaten, etc BECAUSE YOU FILED THAT CLAIM, either DENIED OR ACCEPTED...

  3. #3
    Join Date
    Aug 2007
    Location
    Ohio
    Posts
    6

    Default Re: Reemployment

    Thanks for the reply Charles. Let me clarify one thing. At the time I was released to return to work, I had already been let go by the company for exceeding the nunber of sick days. Therfore I was unemployed. So, if my WC claim is not allowed, would I still be able to take advantage of the FEHA/ADA to return to the company? Thank you.

    Happytobehere

  4. #4
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: Reemployed

    Now THAT is a tough one! Did you have vacation leave that you could have used when your sick-leave ran out? What is your employer's WRITTEN POLICY about being off work in excess of sick leave with a phycian's note?
    Is your ER enforcing this policy EQUALLY, or do they just terminate the employees who have filed Wc claims when they "exceed" allowble sick days, and then PRECLUDE the injured worker from using vacation time? But the "other" employees can use a combination of sick/vacation leave if THEY are sick, injured.

    How may employees does your ER have..ie mor than 50 in a 75 mile radius STEEL--HELP ME OUT!!! Does your ER advise employees in the employee manual or by posting in a conspicuous place that employees are entitled to FMLA (Family Medical Leave Act), if either the emplyee or a close family member has a serious injury that requires time off for uo to 12 weeks, without losing their job?

  5. #5
    Join Date
    Aug 2007
    Location
    Ohio
    Posts
    6

    Default Re: Reemployed

    I had been with the company for just under 3 months. I didn't have enough earned vacation to cover me to my return to work date. And of course, I didn't qualify for FMLA. The company said it was unfortunate, but this exact situation had occurred several times before also ending with termination for those employee. The employer has in excess of 250 employees. I would bet most live within a 75 mile radius.

  6. #6
    Join Date
    Nov 2006
    Location
    Ohio
    Posts
    324

    Default Re: Reemployed

    Quote Quoting Happytobehere View Post
    Hello,
    I am new to the forum and have some WC questions. I live in Ohio.
    I injured my left elbow at work this past January. In March I had surgery to repair the damage. Therpy lasted through the end of May. At that time I was released to return to work with the permanet restriction of no repetitive motion. The company (self-insured) denied the claim and I was let go the second week of May after having used up all my sick days. I have my first WC hearing this week.
    My WC attorney has told me that even if we win, it will be up to the company as to wether they will take me back or not. I thought the company had to make reasonable accommodations for me as long as it
    would'n cost them too much. My attorney's concern is to get the claim allowed. He said they do not deal with much outsde of that. Who would I contact about new training If I can't get back with the company?

    Thank You,

    Happytobehere

    Happytobehere,

    Hello I need some clarification here. So your date of injury is January 2007 right? Surgery in March, returned to work in late May, correct? When was the self-insured employer notified of your injury? What was the reasoning for firing you besides out of personal time? If they were aware of the injury, you had surgery and therapy did you take short term disability while you were off work? When did they reject the claim??

    Just curious, trying to help.
    Beth, Legal Assistant
    Wife and Mother of injured workers

  7. #7
    Join Date
    Nov 2006
    Location
    Ohio
    Posts
    324

    Default Re: Reemployed

    Quote Quoting Charles Stevens View Post
    Now THAT is a tough one! Did you have vacation leave that you could have used when your sick-leave ran out? What is your employer's WRITTEN POLICY about being off work in excess of sick leave with a phycian's note?
    Is your ER enforcing this policy EQUALLY, or do they just terminate the employees who have filed Wc claims when they "exceed" allowble sick days, and then PRECLUDE the injured worker from using vacation time? But the "other" employees can use a combination of sick/vacation leave if THEY are sick, injured.

    How may employees does your ER have..ie mor than 50 in a 75 mile radius STEEL--HELP ME OUT!!! Does your ER advise employees in the employee manual or by posting in a conspicuous place that employees are entitled to FMLA (Family Medical Leave Act), if either the emplyee or a close family member has a serious injury that requires time off for uo to 12 weeks, without losing their job?
    Charles, as far as FMLA goes, it is more then 25 for sure in a 75 mile area and I believe that the employee has not have at least 6 months of employment with current employer to qualify for FMLA I am researching now.
    Beth, Legal Assistant
    Wife and Mother of injured workers

  8. #8
    Join Date
    Nov 2006
    Location
    Ohio
    Posts
    324

    Default Re: Reemployed

    Quote Quoting whatamess View Post
    Charles, as far as FMLA goes, it is more then 25 for sure in a 75 mile area and I believe that the employee has not have at least 6 months of employment with current employer to qualify for FMLA I am researching now.

    Ohio FMLA is the employee has to complete 12 months of employment and worked 1250 hours during that 12 month period.


    Here is the link: http://das.ohio.gov/hrd/pdf/fmlamanual.pdf
    Beth, Legal Assistant
    Wife and Mother of injured workers

  9. #9
    Join Date
    Aug 2007
    Location
    Ohio
    Posts
    6

    Default Re: Reemployed

    whatamess,
    Injured late January 2007.
    Surgery mid- March 2007.
    Never did return to work due to termination. I completed a company injury report the first week of February indicating the injury occurred at work. The reason for termination was exceeding my sick days due of the injury. The company stated this was policy and had happened several times before.

    I did receive short-term disability, but long term was denied. The claim was rejected before I had surgery. There is a correction I need to make. I had said I was let go mid-May. What happened was the STD stopped in mid -May. I was terminated sometime in April. Thank you.

  10. #10
    Join Date
    Nov 2006
    Location
    Ohio
    Posts
    324

    Default Re: Reemployed

    Quote Quoting Happytobehere View Post
    whatamess,
    Injured late January 2007.
    Surgery mid- March 2007.
    Never did return to work due to termination. I completed a company injury report the first week of February indicating the injury occurred at work. The reason for termination was exceeding my sick days due of the injury. The company stated this was policy and had happened several times before.

    I did receive short-term disability, but long term was denied. The claim was rejected before I had surgery. There is a correction I need to make. I had said I was let go mid-May. What happened was the STD stopped in mid -May. I was terminated sometime in April. Thank you.

    Did your doctor certify you off work beginning the first day you missed work? That is important because if you used all personal time etc up before your doctor certified you off is going to be a little harder but not impossible to get around. When is your hearing?? If you would like to PM me instead that is fine also. Your attorney is right, get claim allowed first, is company union? if you feel that you were fired due to work related injury then you have 90 days from the date you were terminated to put them on notice and 180 days to file into court. no exceptions. Count your days....hopefully not too late but it my be.

    So, if your doctor can certify you completely off work from DOI til you returned to work with restrictions, I don't believe you have anything to worry about as far as your claim goes.
    Beth, Legal Assistant
    Wife and Mother of injured workers

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