Human Resource Blog

South Carolina Workers’ Comp Terminated

	Benefits
Total Compensation Summary Performance Improvement Plan Performance Appraisal and Review Employee Payroll Status/Change Form Employee Change Form

	Termination
Employee Warning Notice Employee Final Warning Notice Employee Resignation Form Exit Interview Questionnaire Separation Checklist

Is it legal for an employee in South Carolina to be terminated while out with a work-related injury? In this case, the employee has had 3 different re-injuries this year. Initially, the workers’ comp claims on all 3 were denied. The first two were appealed and ruled workers’ comp injuries. The employee is still out on the third injury, which has not been ruled Workers’ Comp. New, the employer has terminated the employee without even offering her FMLA leave. Is this legal?

The employee has several different options available, regarding the third Workers’ Comp ruling and the issue of FMLA leave.

The employee may, first, appeal the Workers’ Comp decision. Every state has a Workers’ Comp commission or an Ombudsman who will pursue the appeal. That applies even if the worker must take more than 12 weeks off during the year (the maximum under FMLA).

In virtually every case, employers may not fire employees for work-related injuries, whether in South Carolina or any other state. This question, however, is complicated by the fact that the third injury was not ruled Workers’ Comp.

On the matter of FMLA leave, assuming the employee was not informed that the time was being counted as time under FMLA. The worker’s recourse in this case is contacting the Wage and Hour Division of the U.S. Labor Department. The employee may be entitled to 12 more weeks of FMLA leave, which is unpaid and job-protected. Employers may legally count time off as FMLA leave, but they must notify the employee in writing of this at the start of the leave.

Another option is additional leave through the Americans with Disabilities Act (ADA), enforced by the Equal Employment Opportunity Commission (EEOC). Leave may be granted as a “reasonable accommodation,” providing the employer does not face an undue hardship.

To clarify the issue of time off and Workers’ Comp, assume that employee Marsha suffered a work-related injury, carpal tunnel syndrome She was out 6 weeks on Workers’ Comp. Later in the year she misses another 6 weeks on a different Workers’ Comp claim for the same injury. The employer informs her in both cases that leave was counted as FMLA. Assume also that Marsha took a third 6-week leave, but this one was not ruled Workers’ Comp. She could be terminated for taking too much time off, because she has used up her FMLA.

This would apply even if the third absence were caused by a new health problem such as cancer or a heart attack. The 12 weeks covers all health conditions in a year. JH