Hurt in an accident now possible termination

by Anonymous

(North Carolina)

Hello. I have a couple questions about an employees rights and safety in the workplace.
Ok this is the circumstances of what happened. My husband has worked at his job for a few years. On March 5th 2009, he clocked out of his job to go to lunch with another employee. On the way to get something to eat, both of them were in a car accident that wasn’t their fault (my husband was a passenger in the car) and both were hurt badly and rushed to the emergency room. My husband suffered extremely bad internal bruising and a broken collarbone.
My husband was referred to an Orthopedic doctor, and when he went that Monday, the doctor told him that he would have to do surgery on my husband’s collarbone and set up the surgery for March 20th 2009. After my husband left the doctor, he went to his job and let them know, and got his paperwork set up for The FMLA and Short-term disabilty. He then had the surgery on March 20th and the doctor had to put a metal plate in to hold his collarbone together so it could heal. The doctor put my husband out of work until May 5th 2009.
After the surgery, my husband continued to go to his follow up visits with the doctor, and was told his bone was not healing at all. The doctor decided not to release him to go back to work yet because it could possibly hurt my husband worse and maybe cause permanent damage. So the doctor put my husband out of work until June 16th 2009, to give him some extra time to heal.
On June 1st 2009, my husband went to his follow-up doctor visit, and the doctor told him that he still had not healed any and he was not going to release him to return to work until Aug. 1st 2009. My husband informed his workplace of this when he found out. They informed him that if he did not return to work on June 16th 2009, and stayed out until Aug. 1st 2009 like the doctor ordered that he was going to be terminated from his job because his FMLA had run out. Now my husband doesn’t know what to do, because he cannot work because of his injury, but if he doesn’t return to work even though he is still injured, he is going to lose his job. If he returns to work, it is very possible that he will injure himself further or cause permanent damage. He asked his workplace if it was possible if he could return to work on temporary light duty or part-time while still healing so that he can keep his job, but they said no, he has to come in and work full-time and do his regular job. If he comes in on light duty or part-time they will also terminate him. He also asked his workplace if instead of termination could they at least give him lay-off so that he could get unemployement insurance once he’s healed so that he will have some income while looking for another job. They told him that they would only do termination, no lay-off.
This is really a problem for us. My husband’s job is our only source of income, so we will lose everything if he loses his job. He cant return to work because he is still under the doctor’s care and will hurt himself worse if he returns to work right now, but if he doesnt, he loses his job. I feel this is unfair because the car accident was not his fault, nor is it his fault because he hasnt healed yet. The doctor has told us that right now my husband will not be able to do his job because of his injury.
My questions are these:

1. Is it legal for them to be able to fire him because he cannot return to work yet? If so, is it legal for them to fire him if he needs to come back to work under temporary light-duty or temporary part-time until he is healed and able to work his regular hours?

2. Would he be eligable for unemployment insurance if he is terminated from his job since he is not at fault?

3. He is allowed to draw his short-term disability benefits until the doctor releases him to go back to work. If he is eligable for unemployment, would it be ok for him to go ahead and sign up for it now as soon as he is terminated, to give the unemployment office time to agree to give it to him? He would not file any claims until released to go back to work on Aug. 1st 2009. That way, it would just be already set up so that when he is released and his Short-term disability stops, he would then start filing his his unemployment claim and not have to wait several weeks with no income.

I would really appreciate any help you can give us concerning this matter. If my husband returns to work right now, he is risking his health and safety (and the doctor had made it clear that my husband is unable to work right now), but if the doctor doesn’t release him to go back to work, he loses his job. This is a very difficult circumstance for us, and we have no idea what our rights are concerning this matter.

Hi Anonymous,

First question of whether it is legal, even if it’s heartless. Yes. FMLA only protects your job for a maximum of 12 weeks.

Second question: Would he be eligible for unemployment? Here is what I would do if my employer was presenting me with the options your husband has been presented with. I would, in writing, request that the employer grant or allow a request for a personal leave until at which time the doctor either releases him for light or full duty. This covers him from any argument that he effectively quit by not making reasonable attempts to preserve the job. I’m not certain what NC statute says about a workers illness, but there is a provision for it. And a failure to ask for a personal leave or to have the leave extended is usually the biggest stumbling block for claimants with health issues.

Thirdly, if he will continue to draw STD past the termination date I don’t think it really matters if he files now or when he does become able and available. If he does it now he will be denied on this issue, but can clear the issue or obstruction to benefits in August when he reopens the claim. Either way there will be a period of time he may have to wait before he actually gets the money.

I also wanted to touch on what would be wrong for the employer to do and that would be to allow your husband back to work without a release from his doctor. It would be a huge potential liability for them. But having said that, their refusal to allow him to come back to work on light duty means that this entire job separation is beyond your husbands control and will be found to be a discharge without good cause, but it is not illegal.

I feel kind of weird about mentioning this because I don’t know anything about it, but have you considered or sought out information about a possible settlement or lawsuit against the party that was at fault for the accident including the lost wages?

Truly sorry to hear about your troubles and wish a speedy recovery to your husband.

Chris