Family Medical Leave Law: FMLA and Workers’ Compensation Maze: An FMLA Guide for Employers
Topics:
1. How is leave covered under FMLA and workers’ compensation statutes and how much time off is required?
2. When is a WC injury covered under the FMLA?
3. Should WC sheets be treated separately from other types of sheets?
4. Does the employer have to give the employee any special notice under the FMLA?
5. Does the employer have to pay for the health insurance of an employee with a WC permit?
6. Can an employee on WC leave be required to use vacation or sick leave?
7. If the employee is relieved of light duty, can the employee be required to return to work?
8. Does the employer have to reinstate an employee returning from toilet leave?
9. Avoid Legal Headaches: Count WC Leave as FMLA
FMLA implementation can be complicated, especially when a leave of absence involves workers’ compensation injuries. This article answers some of the most common questions about workers’ compensation and the FMLA.
The Family and Medical Leave Act (FMLA) statute does not contain any direct reference to workers’ compensation injuries, and employers did not receive specific guidance on the subject until the final regulations of April 1995. However, given Since most workers’ compensation leave is covered by the FMLA, an employer’s failure to treat this leave as FMLA leave can lead to inadvertent violations of the statute’s requirements. To help navigate the complicated legal maze of the FMLA and workers’ compensation, the editors have identified eight frequently asked questions on this topic. Answers are based on analyzes of the FMLA, its regulations, court cases, Department of Labor Wage and Hour opinion letters, and discussions with legal and human resource experts.
1. How is leave covered under FMLA and workers’ compensation statutes and how much time off is required?
The FMLA is a federal mandatory leave law intended to protect employees who need time off from work to attend to certain family and medical problems. It applies to employers with 50 or more employees and all public agencies and schools and allows an eligible employee to take up to 12 weeks of job-protected leave for various family and medical reasons, including medical leave when the employee is unable to work due to a “serious health condition”.
Workers’ compensation (“WC”) statutes are primarily state earnings continuation and liability laws that protect employees who are injured while on the job. Almost every state has a law that guarantees an income (funded by employers and the state) to employees injured on the job while also placing limits on the employer’s liability for the injury. Benefits vary from state to state, but generally include medical treatment, rehabilitation, disability, and salary continuation. However, WC statutes are generally not licensing laws. Most states do not require employers to grant a specific amount of leave for workers’ compensation, and only a few states require reinstatement of WC leave.
2. When is a WC injury covered under the FMLA?
If the employee is eligible for FMLA leave and the injury is considered a “serious health condition,” the WC leave must be treated under the FMLA. The FMLA defines a serious health condition broadly to include any “physical or mental illness, injury, impairment, or condition involving” hospital care or ongoing treatment by a health care provider. The statute does not distinguish between work-related and non-work-related injuries. Therefore, any on-the-job injury that requires an employee to take leave to seek hospital care or ongoing treatment will likely be covered by the FMLA.
Consequently, whenever an employee is injured on the job and needs time off to recover, the employer must immediately determine whether the employee is also eligible for FMLA leave. If the employee is eligible for FMLA leave, the employer must notify the employee in writing that the leave is covered by FMLA so that the leave time can be counted against the employee’s 12-week FMLA entitlement. If the employer does not run the WC leave at the same time as the FMLA leave, the employee may still have the full 12 weeks of FMLA entitlement available to use after the WC leave.
3. Should WC sheets be treated separately from other types of sheets?
Some experts suggest that WC licenses be treated separately from all other types of licenses to ensure compliance with the requirements of state workers’ compensation laws. However, treating workers’ compensation as an entirely separate category of leave can cause employers to inadvertently neglect FMLA requirements.
4. Does the employer have to give the employee any special notice under the FMLA?
To deduct the time spent on toilet leave from an employee’s annual FMLA leave entitlement, the employer must notify the employee in writing that the toilet leave is designated as FMLA leave and will count against, and run concurrently with, the 12 weeks of the employee. straight. The notice to the employee must detail the employee’s specific obligations while on FMLA leave and explain the consequences of failure to comply with these obligations. Most employers use the Department of Labor’s Form WH-381 to meet these notification requirements. If the employer does not provide the notice, the employer cannot count the WC leave toward the 12-week FMLA entitlement. Therefore, the employee may be entitled to an additional 12 weeks of FMLA leave at a later date.
If the employee has been on WC leave without being specifically placed on FMLA leave, the employer must send notice to the employee immediately to start the FMLA clock ticking. However, the employer may only designate the leave from the date written notice is provided to the employee. He cannot retroactively designate time spent on WC leave against FMLA entitlement.
5. Does the employer have to pay for the health insurance of an employee with a WC permit?
If the employee qualifies for FMLA leave and the employer normally pays for health insurance, the answer is yes. Although most state WC laws do not require employers to pay for health insurance during WC leave, the FMLA requires the continuation of health insurance benefits during FMLA leave. Generally, WC state laws cover an employee’s medical costs related to a work-related injury, but do not require continuation coverage or payment from a health insurance plan. However, under the FMLA, employers must provide the same health benefits during an eligible employee’s FMLA leave that they would have provided if the employee had worked the entire leave. Therefore, if the employer normally pays 80% of an employee’s health benefit premium, it must continue to do so during the employee’s FMLA/WC leave.
6. Can an employee on WC leave be required to use vacation or sick leave?
The FMLA allows employers to require employees, or employees choose, to substitute increased vacation, sick, or other paid leave for all or part of the 12 weeks of unpaid leave. WC licensed employees generally receive up to two-thirds of their normal salary as a wage benefit under state law. In recognition of this benefit, the FMLA regulations do not allow the use of paid leave if the employee is receiving workers’ compensation, even for the employee to be “complete” or if the employee requests it. However, the employer may designate the leave as FMLA leave and count it against the employee’s 12-week FMLA entitlement.
7. If the employee is relieved of light duty, can the employee be required to return to work?
Most light duty positions do not include the employee’s normal job duties. Therefore, if the employee is unable to perform the essential functions of the job due to the work-related injury, the employee may continue to take any remaining FMLA leave and may not be required to accept the light duty position. However, if state workers’ compensation statute requires the employee to take on light duty assignments in order to continue receiving wage benefits, the employee’s WC benefits may be discontinued. The employee must then be allowed to use any accrued paid leave during the remaining unpaid FMLA leave.
8. Does the employer have to reinstate an employee returning from toilet leave?
If the employee is covered by the FMLA, they must be reinstated to the same or equivalent position. The employee must be reinstated even if the employer did not notify the employee of FMLA coverage. If the employee does not return to work at the end of the 12-week FMLA leave, the employer may terminate the employee without violating the FMLA as long as the termination is consistent with the treatment of similarly situated employees who have taken FMLA leave. However, the employee must have been properly assigned FMLA leave and notified that the time off for WC leave ran concurrently with FMLA. Additionally, some state WC laws, such as Oregon, require reinstatement regardless of the length of the WC license. As an added complication, the employee may be considered disabled under the Americans with Disabilities Act and therefore may be entitled to additional leave as an accommodation.
9. Avoid Legal Headaches: Count WC Leave as FMLA
Since most workers’ compensation leave will generally be covered by the FMLA, employers must be prepared to comply with both laws. Failing to classify WC leave as FMLA leave generally won’t harm the employee as long as he gets all the benefits of FMLA leave, such as continued health insurance and reinstatement rights. However, the employer may lose the opportunity to count the WC leave time against the employee’s FMLA entitlement and may unnecessarily extend the employee’s FMLA leave eligibility. Additionally, employers may violate the FMLA if they fail to reinstate an employee from toilet leave that was not properly designated as FMLA leave.