FMLA/WC

rmk

We have an employee who has been out on Workers' Comp for 13 weeks and has developed further complications. We have no idea how long he will be out. My problem is, I never notified him of his right for FMLA. Actually I never thought about the necessity for running it simultaneously with Workers' Comp, which we can in PA. Does anyone know exactly what the repercussions of this situation are and how I move forward with this BIG mistake??? I appreciate the input!!!

PAhr

The mistake is already made so now you need to think of a few things. Have you only allowed every other employee the maximum twelve weeks? How much longer might this employee be out? You can do one of two things. First option is to immediately inform the employee that you failed to apply FMLA to this leave, explain what FMLA is and that it only allows for twelve weeks of leave, ask him to get the required paperwork filled out by his physician and tell him that this will retro-actively go back to his first day out and due to this he no longer will have job security, if this is all the leave you ever allow under these circumstances. This is not exactly the best way to do it but FMLA cases have been thrown out so long as the employee got his twelve weeks of protection afforded by the law, which this employee did get. The only down side is that the company attorney will be submitting bills until the case is thrown out. Your other option is to immediately tell the employee that from this day forward all time missed is going against his FMLA entitlement pending certification and pray that he cannot return in twelve weeks. Otherwise, you just set a presidence to all other employees. Not to mention if someone in a different class is terminated under similar circumstances they will be crying foul (discrimination). You should get in touch with your company attorney and ask him for his legal advice on the situation.

Leslie

Totally agree with PAhr. I had to place two employees on FMLA who had both been out on WC way longer than your guy (one 9 months, other almost a year!) - the previous HR person had dropped the ball. One returned, one didn't. The one who couldn't threatened action but got nowhere - all the Is had been dotted and Ts crossed.

rmk

[font size="1" color="#FF0000"]LAST EDITED ON 04-14-03 AT 06:51AM (CST)[/font][p]So then you both agree that I should admit to the mistake, which I am more than happy to do and the clock starts ticking now...

You can obviously tell my inexperience with WC, I honestly thought he was protected by WC so FMLA would not apply...

PAhr

Admit the mistake but as to the exact date the clock starts ticking is your call. No matter which option you chose, you might be in for some headaches. Valuable lesson learned: Always get the FMLA clock started ASAP.

Leslie

See if you can find some kind of milestone date during the WC where you could kind of split the difference and it will make sense to start the FMLA...such as he went out on WC, was anticipated back in say six weeks, when the doc said, no it's going to go at least another six.

I started the clock running like two weeks earlier then I sent the letter because that's when I took over the HR. I sent an "it has come to my attention..." letter. I really never anticipated either would come back, but it's amazing what kind of healing takes place when the gravy train is stopping.

WC/FMLA/paid leave time can all run concurrent.

DB

Can WC and FMLA also run together in Illinois? Illinois is different about a few other things, I never get a straight answer from the attorney and I don't know where else to go. I don't have the option to contact another attorney.

Would calling the Illinois Industrial Commission (who handles wc) be a mistake?

How can I impose FMLA when one wc case had back surgery which requires at least 4 months of recovery and therapy?

I'm open to any inexpensive resources you can suggest.

Help!

Leslie

I thought - but I could be wrong - that as FMLA is a federal mandate, they are the one calling the shots. I guess a state could expand on the benefits.

We term after FMLA because their insurance is no longer protected, and they must go on COBRA and long term disability - which requires they are no longer actively at work. The employee has six months to return to maintain previous seniority and pay IF we have availability and they apply.

Call your WC carrier - not the industrial commission. They should be able to tell you of any Illinois expansions and/or loopholes.

System

FMLA is a mandatory federal leave law and WC statutes are primarily state liability and income continuation laws. If the ee 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 ee is provided. It cannot retroactively designate the time spent on WC leave against the FMLA entitlement. Also, does the ee have any insurance liability that he/she is responsible for? You need to advise of that also in your letter and how you will recoup the premiums. Are you getting reports from the WC case manager? If not, you need to start bugging them to stay current with reports. Also, you can't allow the ee to use and be paid for leave if the ee is receiving WC. Isn't overlap fun?

Don D

It is legal and proper in certain situations (yours seems not to be one) to retroactively invoke FMLA where the employer failed to designate the leave as FMLA. FMLA is a federal job protection statute. Workers Comp laws are like UI laws, state imposed. In most states, comp is not a job protection statute, meaning the employee has no right to the job as with FMLA.

legaleagle14

If you haven't acted already, check out a case entitled Ragsdale v. Wolverine, 122 S. Ct. 1155 (2000). I haven't looked at the case in awhile but it may address your situation. As I recall, in that case the employee had been out on company medical leave for 30 weeks and, when the 30 weeks expired, he requested FMLA. The employer told the employee that 12 of the 30 weeks absence would be designated as FMLA. The employee was terminated prior to returning to work and sued under a DOL regulation that said, in essence, if an employer fails to designate leave as FMLA leave, the employer cannot retroactively count it as FMLA leave.

The Supreme Court held that the provision was invalid because it failed to require the employee to prove that he had been harmed in some way by the employer's failure to inform him that the leave would be designated as FMLA leave. A significant finding in this case was that the employee would still have taken the entire 30 weeks even if he had been informed of his FMLA rights and he offered no evidence that he had been harmed by his employer's ommission. As in your situation, the employee could not specify when he would be able to return to work.

FMLA and WC are not my area of expertise but, hopefully, this case will be of some help. I strongly suggest you consult an employment attorney re: the applicability of Ragsdale to you situation. Good luck!

njjel

It could also depend on your company policy. We have a written policy that states we will not run FMLA concurrent with WC. Just something we decided to do.

vmiller MO

There seems to be some confusion between FMLA and WC. These are two different schemes, but are not mutually exclusive. I have a suggestion for approaching the analytical issues invovled. First, start with WC. Is the injury a WC injury. If the answer is yes, then the person is on WC and the state law applies. Most states do not guarantee that an employee returns to his/her job at the end of the WC leave, but most states do have antidiscrimination provisions. Illinois, for example, has a judicially created cause of action. Missouri has a statutroy prohibition. You should, therefore, check your state law. The next step is to look at FMLA. If a person is off on WC leave, it is almost certain that FMLA is implicated. FMLA does not supplant WC. It is inaddition to WC. An employer can make the policy decision that it will not force an to take FMLA leave while the employee is on WC. Legally that is ok. However, if the employee wants to take FMLA leave while on WC, and the employee is entitled to the leave, then the employee can take it. An employee may want to do so inorder to protect his/her job or to continue health insurance status. The issue is whether to force the employee to take FMLA leave. The answer is yes. The consequences are that the employer has to reinstate the employee if the employee returns from the FMLA leave/WC within the 12-week time frame and restore the "benefits." In addition, if the employee does not return, then the FMLA protections are gone and the employer only has to deal with the WC issues.

As to notice, it is true that the S. Ct. did hold as stated; but there is more to that case. The issue from a practical, not legal, view is why would you want to risk legal action. Give the notice and move on.