WC & Intermittent FMLA

I have a recent WC claim (diagnosed as mild carpal tunnel).  The worker has requested FMLA paperwork in the event she needs to miss work on occasion due to hand pain.  We do not know at this point what treatment her dr will pursue.

It should be noted that the employee has exhausted her regular excused time off and been advised that she would need a doctor's slip to take off (intermittently) for her hand.  She requested the FMLA paperwork after I told her that her the dr needed to authorize her WC absences.  

I know about intermittent FMLA and dr recertification for non-work conditions.  Does anyone treat WC differently? 


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  • You have two issues. Neither are mutually exclusive or inclusive of the other. Assuming that the injury has been accepted by your state standards as a WC related injury and the EE has been medically certified as having a WC injury then that is one issue.

    The second one is if the EE has an injury, WC related or not WC related, that would otherwise be a qualified FMLA  absence as a serious health condition. If the answer is yes then you would designate the employee as FMLA qualified and begin your FMLA  process.

    Assuming that you have done the medical certification and WC has accepted the injury as compensable and assuming that it is FMLA qualified then you may run both the WC leave and the FMLA leave concurrently. But here is what I would watch for. If WC has a medical regiment that includes her ability to work a modified duty then that is what I would expect from the EE. (This may change if the EE is also FMLA qualified. Explained below)  If the EE has not been medically certified I would use the medical certification form that I send for FMLA certification with the EE to the medical provider. You will then have one medical provider that can make determinations concerning intermittent leave for pain or if the EE can work with limitations or cannot work at all.  Let the certification dictate that.

    As far as being out of excused time off there a couple of things to think about. If the injury  is a qualified WC injury  the employee is receiving pay under the WC benefits. Rather or not the EE has expired her leave under your company policy  if you are a qualified agency under the FMLA statutes, then she is entitled to the 12 workweeks of qualified FMLA  non-paid allotment. Therefore if the injury is also qualified as a FMLA serious injury or illness absence the non-paid absence is substituted for pay  by  the WC covered event. However the FMLA allotment is being reduced at the same time.

    One other caveat. If the EE is covered by both statutes, WC and FMLA, the attendance requirements are different. Under WC you may require the employee to report for duty  if the medical provider has said that the EE can work a modified duty. If they do not report for duty then that will be considered a lack of good faith on the EE's part concerning WC. On the other hand if the EE is qualified for an FMLA absence  as a serious health condition or illness, FMLA has no allowance that you can require the EE to report for duty even if they can work a modified assignment. The onus is on the EE as to what consequences they are willing to accept from the WC board if they do not report for duty. As far as you are concerned you have to be very careful that you do not get caught up in an interference with their FMLA  rights.

    Confusing? Sure. I've had to handle this type of circumstance before. If nothing else and you have an attorney it may be good to run it by him/her.


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