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Work Comp/ FMLA

KenjohnnieKenjohnnie 7 Posts
in FMLA/ADA/Workers’ Comp Vote Up0Vote Down
I have an employee employed 2+ years in sales who has just experienced his 2nd significant work injury. His dr has restricted him to lifting no more than 10lbs and has placed him on pain meds. We have decided he is currently unable to perform the essential functions of his job, and want to remove him until he is completely released from the dr. Do we offer him FMLA? Can we replace his position since we have no idea when/if he will return? Do we have to offer him his old position back when he returns?
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  • marcmarc 3,126 Posts
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    Assuming the EE has worked 1250 hours in the last 12 months and you have 50 EEs within a 75 mile radius, the salesman qualifies. Yes, you would have to offer him his position back if he is ready to return after the 12 weeks.

    The FMLA was designed for this type of situation.
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  • CRS8383CRS8383 29 Posts
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    I am not sure you would have to offer him FMLA, but you need to check your state's WC laws. In most states the WC laws protect an employee's job regardless of whether or not they are on FMLA. Oklahoma for example, states that you can not terminate an employee soley for being away from work if they are still drawing TTD benefits. This situation can extend well beyond the time allowed by FMLA. I do believe it is good practice to have a policy that states any leave due to a WC injury will run concurrent with FMLA were applicable. This would prohibit an employee from missing time with an injury and then turning around and taking FMLA in addition to. Also, there have been several attorneys taking advantage of the fact that the employee was not notified that their leave was going to be treated as FMLA, and when they reached MMI the employer is read to resolve the claim, and the employee then asks for FMLA and exenteds the process another 12 weeks.

    Our practice is when an employee is injured, and is going to be off work, or there is a strong possiblity they will miss work, we provide them with an information package reminding them of their resposibilties during their treatment and we also include the sign off sheet stating their leave will run concurrent with FMLA, along with our FMLA policy.
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