concurrent WC and FMLA

freyh8

An employee tore a tendon and is out on WC, I gave him the FMLA paperwork and he still has not returned the medical certification- claiming that the union's lawyer advised him this is not FMLA too. the bargaining agreement does not touch on this subject at all. He has the letter, notifying him that we conditionally designated FMLA...what do I do if he refuses to have the certification completed, he is already out on WC? Also our policy is to substitute accrued paid leave for unpaid FMLA, can I do that in this case?

LindaS

You have paperwork certifying his need to be off work so having the actual FMLA papers isn't truly necessary. I would provide him with written documentation stating that the FMLA and WC are running concurrently and his time off will count toward his FMLA allotment. I would not recommend substituting his paid leave. He is probably receiving payment from WC for his disability so I would waive that portion of the policy.

Don D

I agree with Linda. Employers are at liberty, under federal law, to implement FMLA whether or not someone requests it. The contracts I've dealt with devote at least one whole page to this subject. If it is not addressed in the contract in any manner, then I would enforce whatever policy is in effect and whatever you typically do as a pattern and practice. My survey reveals that union lawyers are at the very bottom of the food chain and near the bottom of the mental capacity chain.

stilldazed

My steps would be basically the same as Linda--designate FMLA and notify the employee that the designation has been made. Since this is W/C, you have the inside edge on getting medical certification. You can and should ask the employee for it, but you can probably get it without the employee's help. I would probably try that route as well.

The time off issue can be company specific. In the past I have leaned toward requiring the use of PTO in W/C LOA, but maybe at a reduced rate, enough to cover regularly scheduled payroll deductions. I just had a discussion with one of our W/C claims reps about whether the employee should/should not take or be allowed/encouraged to take PTO during W/C LOA. It can get a little sticky given with the 7-day wage waiting period in Florida (1st 7 days=waiting period, Days 8 thru 20=W/C wages, Day 21+=W/C wages + retro for 1st 7 days). She described that through the W/C wage compensation process many W/C insurance carriers advise employees that they can take both if their employer allows and that the employee can choose to reimburse the employer if the employer allows when duplication of wage benefits between W/C and PTO occurs. Their experience had been that workers generally won't reimburse because the 'cash in hand' has usually been spent by the time reimbursement might be appropriate, and a reimbursement would probably require a lump sump payment(cost prohibitive for most workers). Their view of the consequences for the 'double compensation' is that the employee's PTO account is reduced by the hours used; therefore, the employee has fewer available hours once the employee is returned to work or the LOA ends in termination. Two things occurred to me: 1. I didn't know until I asked what the message from the W/C insurance carrier actually was (i.e., maybe you should ask); 2. While I was concerned about creating an incentive-type situation with double wage compensation, a better situation might be that the worker has very little or no time left to take later in the year. Think about it . . . not a bad plan!