Worker's Comp w/FMLA

System

Can anyone point me to the reg under FMLA that states we can use this in conjunction with Loss Time under Worker's Comp? Thanks

lnelson

[font size="1" color="#FF0000"]LAST EDITED ON 04-03-07 AT 11:28AM (CST)[/font][br][br]It is the ERs decision to run concurrent or not. If they do not the FMLA 12 weeks would still be available to the ee. The ER must be consistent if they do it for one they do it for all who qualify.

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.

System

I appreciate the response. A follow-up question, though: Let's say we run FMLA concurrent with WC...At the end of the 12 week allowable time period, would we then terminate the employee, which would in affect discontinue the Loss Wages the employee was receiving under WC? Additionally, if the employee was ever released to return to duty after the 12 weeks had past, we the ER would not be under any obligation to hire them back...right? Thanks

davids

FMLA regulations do not specifically reference workers' compensation, but the definition of serious health condition doesn't separate out workers' compensation issues. So, yes you can run FMLA concurrently with workers' compensation.

However, invoking FMLA does not extinguish the employee's rights under workers' compensation. If the employee is not able to return to work after exhausting FMLA, he/she is still entitled to all rights and benefits of workers' compensation. So, no you cannot terminate the employee if the workers' compensation claim is still active.

NaeNae55

No regs specifically state you can use both together. Rather, no regs say that you cannot and the courts have been fine with doing them together.

Even if you run them concurrently, you must still handle each separately and make sure you are in compliance with both laws. If the work comp claim is still active after 12 weeks, the employee is treated the same as if there wasn't any such thing as FMLA.

Running them concurrently only protects you from having to give the employee additional time off for an FMLA qualified reason once they recover from the work comp issue. Otherwise there would be no reason to run them concurrently.

Good luck!

Nae