Human Resource Blog

Forced to use FMLA? Montana

Hi,my hr lady signed me up for fmla,i am currently off work with rotator cuff repair,expected to be back to work 12 weeks,am currently fully covered by wc,including pay.She also cashed in my sick and vacation days,even though i am not off work without pay,as wc is covering pay.Also,she back dated the paperwork(which i never signed).I think i have a hr director that is lost? Thanks,Bob

She’s probably torturing you for referring to her as an “HR lady” instead of HR Director or HR person.

It’s perfectly legal for time off for a serious health condition under Workers’ Comp to be counted as FMLA leave. The employer doesn’t need the worker’s “permission” to count Workers’ Comp time as FMLA – the employer simply needs to inform the worker at the beginning of the leave, that it will count as FMLA. Clearly, the “HR lady” has done this.

Here’s a link to the U.S. Department of Labor guidelines that state this.

It’s easy to understand why the U.S. Department of Labor regulations are set up this way. Consider Bob, who is off for 6 months with a Workers’ Comp injury. He returns to work, and develops another serious health condition days later. Bob takes an additional 3 months of unpaid FMLA. Clearly, having an employee who is missing from work for 9 months out of 12 would be a problem for any employer.

It is a little dubious that the HR person seems to have made the FMLA leave retroactive. The employee might be able to appeal that decision, and have the FMLA leave start on the day he was informed.

The other part of this situation that seems unusual is that the employee has lost his vacation and sick time. Normally an employee who has a work-related illness or injury is entitled to paid time off under Workers’ Comp. The employee should not have to use his sick time or vacation time under those circumstances. Unless the employee took additional paid time off before the work-related illness or injury, it’s not clear why the sick and vacation time would be eliminated.

It might be that this was just a clerical error. Many companies require workers to use all their paid time off before taking FMLA. The payroll system might not be set up to accommodate a person who is on FMLA and Workers’ Comp at the same time. If this is true, simply bringing the error to the attention of the HR Department might solve the problem. Or it could be that the sick and vacation time will automatically be reinstated when the employee returns to work.

Company policies on vacation and sick time vary, however, in most cases, an employer cannot penalize a worker for having a Workers’ Comp claim, by taking away earned benefits. Workers’ Comp laws are state-specific. Most states have a WC Ombudsman or state office of WC appeals that helps workers with complaints. In Montana, that’s the Workers’ Compensation Regulation Bureau, a division of the state’s Department of Labor & Industry.