Legal Question in Medical Leave in Oregon
Lost Job while on workers comp for going into a treatment program employer not a
My husband was employed by a restaurant, he had worked there for about 4 months when he went into a treatment program. My husbands employer kept his job for him during his 2 week treatment program, even though he was not eligible for FMLA. He began working at another restaurant about 3 months after his treatment. He was gone for about 6 months before returning to work at this restuarant. He had been working here again for one month when he became injured on the job. He had no time lost due to his injury but there were some medical bills and his workers comp claim was just accepted 2 weeks ago and is still open. My husband decided he needed to go into a substance abuse treatment program again because he had relapsed. His employer is now indicating he is not covered under FMLA and will not have his job waiting for him upon return. The only difference between this request for treatment and the last time is that my husband has had a workers comp claim. Is it legal for the employer to cover him last time and not this time? We feel the reason for their refusal of the time off is based on the workers comp claim. Does the time he worked there before count towards the employment hours requirements? Can he be fired while on workers comp?
1 Answer from Attorneys
Re: Lost Job while on workers comp for going into a treatment program employer n
To be eligible for protected medical leave under FMLA, an employee must have been employed for at least a year and have worked 1,250 hours in the 12 months preceding the leave. The one-year requirement need not be consecutive, but the 1,250 hour requirement must be met in the preceding year.
Under OFLA, the state medical leave law, an employee must have worked at least an average of 25 hours per week over the 180 days immediately before the leave was to commence.
To be covered, the employer must have at least 50 employees within 75 miles of the location where the employee performs work, and under the state OFLA the employer must have 25 employees within the state of Oregon, for at least 20 weeks of the year.
If your husband did not meet the hours requirements, or if the employer refusing leave did not meet the required number of employees, no medical leave is required.
Regarding the workers� compensation claim, an employer who terminates an employee due to a workers� compensation claim violates the law. On the other hand, merely terminating an employee while on workers� compensation is not illegal. The termination must be BECAUSE of the workers� compensation claim. A termination for any other lawful reason is not illegal. Still, despite an interim termination, your husband may continue to have reinstatement or reemployment rights. He should demand to return to work promptly upon being released by his attending physician to return to work.
The above does not constitute legal opinion and is offered for the purposes of discussion only. The law differs in every jurisdiction, and you should not rely on any opinion except that of an attorney you have retained, who has a professional duty to advise you after being fully informed of all the pertinent facts and who is familiar with the applicable law.
Good luck.
Craig A. Crispin
Crispin Employment Lawyers
www.employmentlaw-nw.com
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