December 14th, 2012

Workplace Bullying Institute advice about work leave options

Year-end holiday season is a risky time for bullied targets. Terminations are common. But highly stressed workers asking their employers for solutions (e.g., get me to safety) are also exploited. Employers, through HR reps, give bad advice. Employers tell bullied employees to do one of two things: (1) file a workers compensation claim, or (2) take FMLA leave time.

Both options favor the employer and not bullied targets. There is an alternative.

Workers compensation was created by and for employers. It is their way to dodge lawsuits because the aggrieved employee must choose only one method — either a WC claim or a lawsuit. Lawsuits are prohibitively expensive for workers, the plaintiffs.

WC claims are traps for employees, too. Employers control the system. They choose physicians, psychiatrists and psychologists from a panel of examiners who will interview claimants but who typically conclude that no harm is inflicted. Instead, these so-called “independent” medical or psychological examiners prefer to explain the claim as trivial, nothing more than “personality conflict.”

When targets file a WC claim, income stops. Then, months or years later, the employer decides that the claim has no basis. Employers are judge and jury.

DO NOT FILE A WORKERS COMP CLAIM for psychological distress when your employer advises you to do so. Also, several states prohibit filing WC claims for stress-related cases. WC is great for broken bone injuries, but not for non-physical injuries caused by employers.

HR loves to advise bullied individuals to file a claim for leave time allowed by the Family Medical Leave Act (FMLA). The principal reason employers like FMLA is that in most states the leave is unpaid! The original purpose of FMLA was to allow time off to deal with medical concerns of related family members, not as a substitute for paid time off (PTO — paid sick days, paid vacation days — that many U.S. employers do not provide).

DO NOT TAKE FMLA LEAVE for being bullied. Save the option for its intended use.

What Do You Do?

As a bullied target, you require time off. You need to be safe and out of the toxic environment. The key is recognizing when your bully and employer collaborate to plan your expulsion. You will be called to a meeting with no agenda and no opportunity to ask about its purpose. Listen to and view the WBI Webinar that warns you about the 1-on-1 Ambush Meeting. Be sure to gather your personal belongings and take them home on your own schedule.

When your gut feeling is that something extreme is about to happen, immediately visit your general physician, or if unavailable, see a licensed mental health professional. Describe the stress you feel. Focus on the negative ways the stress has changed your life. Discuss all possible symptoms, even if you think they are small or trivial. You won’t have to exaggerate. The health harm is real.

The goal of your medical visit is to get an off-work order for at least two weeks. This is easily done by the physician on a prescription slip. The declaration need only state “job stress.” It must then be faxed to HR or the owner. The off-work order is the start of a process.

The next step is to file a Short-Term Disability (STD) insurance claim. This is the alternative to WC or FMLA. Your physician’s opinions about your status launch the claim. In most states, STD is an option, either from the state or as an employer-provided benefit. Sometimes, your payroll deductions contribute to STD.

STD allows employees to take disability leave with pay. Some plans continue your normal salary for up to 90 days by combining reduced compensation from your employer with insurance. You may not get paid a full paycheck, but it is more than either WC or FMLA leaves pay.

While on STD, you can plan your future that may or may not include your current employer. An additional benefit of STD is that if and when your employer fires you while on STD, it is a potential violation of the Americans with Disabilities Act. You might be discriminated against. Only an attorney can advise the feasibility of threatening or actually filing a lawsuit based on an ADA violation. The threat of a lawsuit might be enough to coerce a severance agreement to get you out of the place.

If your injury is sufficiently serious and your medical advisers agree, apply for Long-Term Disability (LTD). This is historically much harder to achieve. Employers fight this option.

If you are traumatized and not likely to be a productive worker again, you might consider applying for early retirement from Social Security based on your disability. You would then receive Medicare insurance.

No matter what route you choose to leave your workplace temporarily, don’t agree to WC or FMLA. Good luck.

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Tags: disability insurance, FMLA, LTD, STD, WC, workers comp

This entry was posted on Friday, December 14th, 2012 at 4:51 pm and is filed under Tutorials About Bullying, WBI Education. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.