Legal Question in Employment Law in South Carolina

Re: Can an employer terminate someone who is collecting workers compensation?

Different company's have different policies concerning medically-related absences from work. If your husband's employer has a policy manual which specifies an employee will be terminated after 6 months absence, then he may be legally terminated even if he is still out due to a workers' compensation injury.

However, if your husand's employer has 50 or more employees, including employees at other facilities, and your husband has worked 1250 hours for this employer during the last 12 months, he is eligible for FMLA leave. The FMLA (Family Medical Leave Act) allows your husband to take up to 12 weeks of unpaid leave for a "serious medical condition." If your husband was not notified by his employer, in writing, that the time off for his workers' compensation injury was being counted as FMLA leave, then he would still be entitled to those 12 weeks. If your husband is eligible for FMLA leave, then you should send a letter to the Human Resources or Personnel Manager once your husband has been out for about 5 months and advise him that your husband intends to take the next 12 weeks as FMLA leave and you would like the employer to provide you with the necessary forms for the doctor to certifiy that he is suffering from a "serious medical condition." Send the letter certified/return receipt requested and keep a copy.

If your husband's employer has 15 or more employees, then it is subject to the Americans with Disabilities Act (ADA). You should write a letter to the employer advising that you believe your husband has "some permanent disability as a result of his work injury," and request that the employer provide him with additional time off, beyond the six-months provided for in its policy, as a "reasonable accomodation pursuant to the ADA." Same as above with regards to mailing and copying letter.

You may have some other options available, but I would need to know more specifics. I hope this information is helpful. Please feel free to contact me, if I can be of further assistance.

Re: Can an employer terminate someone who is collecting workers compensation?

There are many variable involved in answering this question.

If your husband is being terminated because he has filed a worker's compensation claim, the company may be subject to liability based on South Carolina statute, although this is somewhat limited.

On the other hand, he would be entitled to Worker's Comp benefits up to a certain amount based on his disability.

Also, the terms of an employee handbook may control the situation. The handbook may create a contract of employment, and if the employer has not followed the procedures outlined in the handbook for terminating an employee, the company may be subject to liability for breach of contract, along with other associated legal theories.

Although this is not directly in response to your question, there may be some other outside areas to consider, such a product liability. Was your husband injured by a device or product while on the job?