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FMLA & Workers Comp concurrently??? To run or not to....
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FMLA & Workers Comp concurrently??? To run or not to....
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
I have been exposed to 2 schools of thought on concurrent FMLA/W/C.
1. The er has the right to capture the FMLA time while ee is out on W/C leave, thus avoiding having to allow the ee additional pr
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Forums » Topic Forums » Legal Forum » FMLA & Workers Comp concurrently??? To run or not to....
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FMLA & Workers Comp concurrently??? To run or not to....
posted at 9/18/2000 11:40 AM EDT
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Posts: 47
First: 2/10/2000 Last: 11/3/2000 |
I have been exposed to 2 schools of thought on concurrent FMLA/W/C.
1. The er has the right to capture the FMLA time while ee is out on W/C leave, thus avoiding having to allow the ee additional protected leave for up to 12 weeks. 2. running FMLA concurrently takes away an ee's benefit to protected time off for another serious illness later in that year, should it occur. The thought here is that the ee would be denied a benefit had he/she not been injured/become ill on the job. Has anyone else ever heard that theory?? Do you see any validity to that argument? What's your opinion? |
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FMLA & Workers Comp concurrently??? To run or not to....
posted at 9/19/2000 1:42 AM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
This assumes you're in a state where comp cases are afforded job-protection. Not all states extend that benefit; in some states, the responsibility is to remedy the injury and NOT to terminate because someone filed a claim, but there is no guarantee of continued employment. For those states' employees, FMLA running concurrently is the only avenue of job-protection; an employee who refuses the extension of leave would also expose themselves to the possibility of being replaced, ADA considerations notwithstanding.
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FMLA & Workers Comp concurrently??? To run or not to....
posted at 9/19/2000 4:45 AM EDT
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Posts: 47
First: 2/10/2000 Last: 11/3/2000 |
Good point, Jim. Let me clarify, I am in a job-protected state for W/C (CA). Knowing this, now, how do you feel about not putting the ee on concurrent FMLA, when qualified?
Thanks |
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FMLA & Workers Comp concurrently??? To run or not to....
posted at 9/19/2000 4:57 AM EDT
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Posts: 169
First: 4/25/2000 Last: 2/10/2004 |
It seems to me that the issue is a management policy/employee relations issue as much as a legal issue. As there is guidance issued by the DOL on the interplay between Worker's Comp and FMLA, there is no question that legally, Worker's Compensation leave is FMLA eligible leave. The only caveat is that if you do take adverse action against people on Workers Comp. leave (assuming you are in a State that allows this), the FMLA may prevent you from doing so. The DOL's position is that if the person is on leave for an FMLA related reason, the person is protected for the entire length of the illness until the employer notifies the employee regarding the FMAL eligibility for the leave. Our office takes the position that the Feds require the employer to designate all eligible leave as FMLA leave and we therefore do so, Workers Comp, Sick Leave, vacation leave or other leave, as long as the appropriate medical information is furnished. |
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FMLA & Workers Comp concurrently??? To run or not to....
posted at 9/19/2000 5:25 AM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
Based on section 825.207(d)(2) of the regs., I would say your first theory is closer to correct than the second. The reg. states: "If the employer designates the leave as FMLA leave . . . . the employee's FMLA 12-week leave entitlement may run concurrently with a workers' compensation absence when the injury is one that meets the criteria for a serious health condition. As the workers' compensation absence is not unpaid leave, the provision for substitution of the employee's accrued paid leave is not applicable."
The reg. goes on to address situations where the employee may be able to do "light duty" work: "...if the health care provider treating the employee for the workers' compensation injury certifies the employee is able to return to a 'light duty job' but is unable to return to the same or equivalent job, the employee may decline the employer's offer of a 'light duty job.' As a result the employee may lose workers' compensation payments, but is entitled to remain on unpaid FMLA leave until the 12-week entitlement is exhausted." The reg. addresses other, related issues, but I think this is enough to answer your question. |
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