News

April 04, 2008

Brian Dotson, employee of BRP US, Inc. was terminated from his employment after filing a workers’ compensation claim.  In support of the termination, the employer relied on the fact that Dotson’s absence from work exceeded the amount of time allotted by the Family and Medical Leave Act.  The company allowed workers up to twelve weeks of unpaid leave after which it relied on the following handbook notification: an employee who is unable to work for more than twelve weeks will be considered automatically terminated at the expiration of that period, regardless of the reason for the inability to work.  (Emphasis added).  In his suit against BRP, Dotson specified three particular acts or omissions that had harmed him: 1) the employment was terminated after he attempted to work with restrictions for a work-related injury; 2) he complained that BRP wrongfully required him to utilize FMLA leave rather than affording him TTD time as authorized by law; and 3) he asserted that BRP violated the Workers’ Compensation Act by wrongfully terminating him for exercising his lawful right to claim workers’ compensation.

In response to the first allegation, the court pointed out that BRP had provided in their handbook that he could be terminated after twelve weeks’ absence for any reason.  Under Illinois law, an employer may terminate an employee for excessive absenteeism even if the absence is caused by a compensable injury.  The handbook notice together with BRP policy and practice justified the termination.

With reference to the requirement that BRP improperly utilized the FMLA leave, the court noted that BRP had designated the absence as an FMLA absence and provided the employee with appropriate notice.

Finally, with reference to the third point, the court stated that the claimant had not been wrongfully terminated for exercising his lawful claim to workers’ compensation benefits.  The FMLA regulations included the following:

An employee may be on a worker’s compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA.  The workers’ compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer). 

If the employee has been on a workers’ compensation absence during which FMLA leave has been taken concurrently, and after 12 weeks of FMLA leave the employee is unable to return to work, the employee no longer has the protections of FMLA and must look to the workers’ compensation statute or ADA for any relief or protections.

The claimant relied on the case of Siekierka v. United Steel Deck, which was described in our July 2007 Newsletter.  The court noted that the employer in Siekierka had a markedly different absenteeism policy.  The policy permitted the employer to decide on a case-by-case basis whether to grant an extension.  After the first month extension, the employer refused to extend the leave further when Siekierka was still unable to return to work.  Siekierka complained that the employer made it impossible for him to return within the time granted to him.  Siekierka was forced to wait four weeks for a surgical procedure which had been recommended by Siekierka’s own physician but delayed for eight weeks by the employer.  If Siekierka had been treated immediately, he could have returned to work in time to meet the employer’s requirements.

In distinguishing Siekierka, the court noted:

Nothing about Dotson’s case calls into question the company’s stated reason for the termination, that Dotson exceeded the twelve-week leave period allowed by the company’s absenteeism policy.  We have considered Dotson’s other arguments and find them equally unavailing.  Because Dotson has no evidence linking his termination with his exercise of rights to workers’ compensation benefits, the district court was correct to grant summary judgment in favor of BRP.

Editor’s Note:

While the action of BRP may have seemed too harsh, it should be noted that the claimant retained his rights under the Workers’ Compensation Act.  However, if the employer provides the appropriate notice and follows the provisions of the FMLA regulations, the employer has a right to terminate any employee who exceeded twelve weeks of FMLA leave in a 12-month period, whatever the cause of the absence from work.

Dotson v. BRP US Incorporated, et alNo. 07-1375, decided March 21, 2008

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105