|
1. How are leaves covered under the 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 leaves be treated separately from other types of
leaves?
4. Should the employer give the employee any special notification
under the FMLA?
5. Does an employer have to pay for health insurance for an employee
on WC leave?
6. Can an employee on WC leave be required to use vacation or sicK
leave?
7. If the employee is released to light duty, can he be required to
return to work?
8. Does the employer have to reinstate an employee returning from a
WC leave?
Prevent Legal Headaches: Count WC Leave as FMLA
Implementing the FMLA can be
tricky, especially when a leave of absence involves workers’
compensation injuries. This article answers some of the most common
questions concerning workers’ compensation and the FMLA.
Get your FREE
access to this and 100's of FREE HR resources today.
-
Download FMLA Checklist
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 topic until the April 1995 final
regulations. However, since most workers’ compensation leaves are
covered under the FMLA, an employer’s failure to treat these leaves
as FMLA leaves 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. The answers are based on
analyses of the FMLA, its regulations, court cases, Department of
Labor Wage and Hour opinion letters, and discussions with HR and
legal experts.
1. How are leaves covered under the FMLA and workers’ compensation
statutes and how much time off is required?
The FMLA is a mandatory federal
leave law intended to protect employees who need to take time away
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
because of a "serious health condition."
[Creating HR Policies or Employee Handbook?]
Workers’ compensation ("WC")
statutes are primarily state liability and income continuation laws
that protect employees who are injured while working. Almost every
state has a law that guarantees an income (funded by employers and
the state) to employees injured on the job and at the same time
places limits on the employer’s responsibility for the injury.
Benefits vary from state to state but typically include medical
treatment, rehabilitation, disability, and wage continuation. WC
statutes generally are not leave laws, however. Most states do not
require employers to give a specific amount of leave for workers’
compensation, and only a few states require reinstatement from WC
leave.
2. When is a
WC injury covered under the FMLA?
If the employee is eligible for
leave under the FMLA and the injury is considered a "serious health
condition," the WC leave should be treated under the FMLA. The FMLA
defines serious health condition broadly to include any "illness,
injury, impairment, or physical or mental condition that involves"
either inpatient care or continuing treatment by a health care
provider. The statute does not distinguish between work-related and
nonwork-related injuries. Thus, any on-the-job injury that requires
an employee to take leave to seek inpatient care or continuing
treatment likely will be covered by the FMLA.
Accordingly, whenever an employee
is injured on the job and needs time off to recover, the employer
immediately should determine if the employee also is eligible for
leave under the FMLA. If the employee is eligible for FMLA leave,
the employer should notify the employee in writing that the leave is
covered under the FMLA so that the leave time may be counted against
the employee’s 12-week FMLA entitlement. If the employer does not
run the WC leave concurrently with the FMLA leave, the employee may
still have the full 12-week FMLA entitlement available to use after
the WC leave.
3. Should WC leaves be treated separately from other types of
leaves?
Some experts suggest that WC leaves
be treated separately from all other types of leaves to ensure
compliance with the requirements of state workers’ compensation
laws. However, treating workers’ compensation as a totally separate
category of leave may cause employers to inadvertently neglect the
requirements of the FMLA.
4. Should the employer give the employee any special notification
under the FMLA?
In order to deduct the time spent
on WC leave from an employee’s annual FMLA leave entitlement, the
employer must notify the employee in writing that the WC leave is
designated as FMLA leave and will count against, and run
concurrently with, the employee’s 12-week entitlement. The notice to
the employee must detail the specific obligations of the employee
while on FMLA leave and explain the consequences of a failure to
meet these obligations. Most employers use the Department of Labor’s
Form WH-381 to comply with these notice requirements. If the
employer does not provide the notice, it cannot count the WC leave
towards 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 placed specifically on FMLA leave, the employer
should send notice to the employee immediately so that the FMLA
clock starts running. However, the employer may then only designate
the leave from the date written notice to the employee is provided.
It cannot retroactively designate the time spent on WC leave against
the FMLA entitlement.
5. Does an employer have to pay for health insurance for an employee
on WC leave?
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 a WC leave, the FMLA requires the
continuation of health insurance benefits during an FMLA leave.
Typically, the state WC laws cover the employee’s medical costs
related to the work injury but do not mandate continued coverage
under, or payment for, a health insurance plan. However, under the
FMLA, employers must provide the same health benefits during an
eligible employee’s FMLA leave that it would have provided if the
employee worked throughout the leave. Thus, if the employer normally
pays 80% of an employee’s health benefits 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 to elect, to substitute accrued
vacation, sick, or other paid leave for all or part of the 12 weeks
of unpaid leave. Employees on WC leave typically receive up
to two-thirds of their normal pay 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 to make the employee "whole" or if requested by
the employee. 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 released to light duty, can he be required to
return to work?
Most light duty positions do not
include the employee’s normal job functions. Therefore, if the
employee is unable to perform the essential functions of the job
because of the work-related injury, he may continue to take any
remaining FMLA leave and cannot be required to accept the light duty
position. However, if the state workers’ compensation statute
requires the employee to take the light duty assignment to continue
receiving wage benefits, the employee’s WC benefits may be
discontinued. The employee then must 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 a
WC leave?
If the employee is covered under
the FMLA, he must be reinstated to the same or an equivalent
position. The employee must be reinstated even if the
employer did not notify the employee of coverage under the FMLA. 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 placed on FMLA leave and notified
that the time off for WC leave ran concurrently with the FMLA. In
addition, a few state WC laws, such as Oregon, require reinstatement
regardless of the length of the WC leave. As a further complication,
the employee may be considered disabled under the Americans with
Disabilities Act and, therefore, may be entitled to additional leave
as an accommodation.
Prevent
Legal Headaches: Count WC Leave as FMLA
Since most workers’ compensation
leaves typically will be covered under the FMLA, employers should be
prepared to comply with both laws. Failure to categorize a WC leave
as a FMLA leave generally will not harm the employee as long as he
gets all of the benefits of FMLA leave, such as continued health
insurance and reinstatement rights. However, the employer may lose
the opportunity to count the time on WC leave against the employee’s
FMLA entitlement and may extend unnecessarily the employee’s FMLA
leave eligibility. In addition, employers may violate the FMLA if
they do not reinstate an employee from a WC leave that was not
properly designated as FMLA leave.
|
Personnel
Policy Service, Inc.
Connect on Linkedin
Like us on Facebook
