Work Comp and FMLA: Concurrent Leave

Sunday, March 30, 2003 | 0

Workers' compensation injuries that require time off of work will typically also have Family and Medical Leave Act (FMLA) issues as well. Knowing how these two laws interact can save an employer time and expense, and result in a more productive work force. This article will briefly review how these two benefit systems interact.

The FMLA became effective on August 5, 1993 for most employers. The purpose of the law was to provide a national employment policy regarding the accommodation of working parents in their choice between job security and parenting, and the inadequate job security that existed for employees with serious health problems.

The stated purpose of the law was to permit employees to take reasonable leave for medical purposes, for the birth or adoption and care of a child or to care for a spouse or parent with a serious health condition.

The FMLA definition of a "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves:

* Any period of incapacity or treatment connected with inpatient care in a hospital, hospice or residential medical care facility;

* A period of incapacity requiring absence of more than three calendar days from work, school or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider;

* Any period of incapacity due to pregnancy or for prenatal care;

* Any period of incapacity (or treatment therefore) due to a chronic serious health condition;

* A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective; or

* Any absences to receive multiple treatments (including any period of recovery) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated.

The FMLA requires employers to provide up to 12 weeks of unpaid, job-protected leave to "eligible" employees for qualifying family and medical reasons. An "eligible" employee is one who has worked for an employer for at least one year and for at least 1,250 hours during the previous 12 months. The law specifies acceptable reasons for taking leave, provides for intermittent or reduced leave and calls for job and benefits protection and continued medical insurance coverage.

Employers required to abide by the FMLA include all public agencies, including state, local and federal employers, schools, and private sector employers with 50 or more employees for at least 20 weeks in the current or preceding calendar year.

Job protection is the paramount underlying purpose of the FMLA, so the law requires that an employee be restored to their position of employment when the leave commenced or to an equivalent job with equivalent pay, benefits and other terms and conditions of employment.

Employers cannot discriminate against employees that utilize FMLA, and decisions or actions regarding hiring, promotions or disciplinary activity that take into account the use of FMLA time are prohibited. In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before taking FMLA leave, nor FMLA leave be counted against the employee under a "no fault" attendance policy.

There are no Federal laws or regulations that tell employers how to integrate workers' compensation issues and the FMLA, but the Department of Labor (DOL) has said that "FMLA leave and workers' compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave."

Time off from work to recuperate from an industrial injury will, more often than not, simultaneously qualify for FMLA protection. Employers need to be vigilante in notifying the injured worker, in writing per the DOL advisory, however, otherwise the employee may be entitled to additional time off with job protection benefits above and beyond the period of work comp disability leave.

Worse, an employer may unwittingly violate the FMLA if an employee is not reinstated following leave for a work comp injury that was not properly designated as FMLA leave.

The FMLA becomes an issue where an injured worker's disability status requires extended time off of work. Notifying employees that employer policy is concurrence in the application of work comp leave and FMLA leave should be a part of the automatic calendaring of activities that require follow up upon an industrial injury. The employment policy manual should also clearly state this policy.

As with all industrial injury situations, strict record keeping and an across-the-board application of policies is essential.