Human Resource Blog

Arkansas 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 Arkansas 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 problem here involves the third injury, which was ruled as being not covered by Workers’ Comp. That complicates the question to some degree. Another issue, however, is the matter of whether or not the employee was notified that the initial time was being counted as FMLA leave.

An employer may only, according to the U.S. Labor Department, count time off taken through Workers’ Comp as part of FMLA leave if the employee was notified in writing at the beginning of the leave.

It is illegal for fire a worker for taking time off due to a work-related injury, whether in Arkansas or in any other state in the U.S. That is provided, however, that the injury is covered by Workers’ Comp.

The employee in this case won in disputes with the company in the first two instances, but the third was not ruled to be work-related. She may appeal the third Workers’ Comp ruling by going the state’s Workers’ Comp commission or to an Ombudsman. If it were ruled work-related, she would be entitled to the time off, even if it exceeded the annual maximum of 12 weeks under FMLA.

She may be able to make case, on the other hand, that the employer failed to notify her that the time off was being counted as FMLA leave. The relevant enforcement agency in this case is the Labor Department’s Wage and Hour Division. She could be entitled to another 12 weeks of unpaid, job-protected leave under FMLA.

Finally, she may be covered under the Americans with Disabilities Act (ADA). She would be entitled to leave as a “reasonable accommodation” if the Equal Employment Opportunity Commission (EEOC) found in her favor.

Assume that employee Marsha has carpal tunnel syndrome. On two different occasions she takes a total of 12 weeks off, both covered by Workers’ Comp. The employer has notified her that it was counted as FMLA leave. She takes time off on a third occasion, this time not covered by Workers’ Comp. The employer could terminate her because she has exceeded the yearly 12-week FMLA limit. JH