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Refusing to return from leave

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in FMLA Guidelines,Human Resources

Q. A worker who was injured on the job but now is better is refusing to return from leave. What can we do?

A. If an injured employee refuses employment offered that is suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless, in the opinion of the North Carolina Industrial Commission, such refusal is justified.

In determining what is “suitable,” North Carolina courts consider any job that a claimant is capable of performing considering his age, education, physical limitations, vocational skills and experience. Courts also consider any compensation differences between what the employee was paid before getting hurt and the amount offered for post-injury employment. However, a refusal is justified if the employer’s offer is contrived or is simply “make work.”

An employer should coordinate any offer of employment with its workers’ compensation carrier or the attorney who is defending the workers’ compensation claim.

In certain situations, the employee may have rights under the FMLA or the ADA. Employers should confer with legal counsel before terminating workers who have recently filed workers’ compensation claims or asserted rights under the FMLA. Attorneys can then advise the employer based on all applicable laws.

If the worker has no other legitimate reason for not returning to work, then he has abandoned his job and can be terminated. Employers should confer with legal counsel before terminating workers who have recently filed workers’ compensation claims or asserted their rights under the FMLA. Attorneys then can advise the employers based on all applicable laws. 

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