Human Resource Blog

fmla

If an employee was injured while at work and does not claim FMLA is he still protected by FMLA?

If the 12 weeks has passed can he still be terminated under FMLA?

The injury was to his knee which required surgy, he has been released to modified duty however we do not have any openings else where. Does this qualify him for ADA? I am in CA.

There is a lot going on here and you should contact an attorney who specializes in workers comp, or your insurance company.

If the employee was injured at work, the injury should be workers comp — but it may also be covered under FMLA. Yes, an employee is covered under FMLA even if he does not initiate the conversation about it. In fact, it is the employers responsibility to offer FMLA.

Under the 2009 regulations, when an employee has an absence for a serious health condition (or another reason that could be covered under FMLA) the employer must inform the worker within 5 days, in writing, of his FMLA rights. The employer should supply the FMLA forms at the same time. The employee generally has 15 days to have the FMLA forms completed and returned to the employer. The employer then has a limited amount of time to inform the employee whether the FMLA leave has been approved or not. 

An employer often counts time off under workers comp as FMLA. However, the employer must inform the worker in writing at the beginning of the leave, that the time is being counted as FMLA. If the employer does not inform the worker in writing at the beginning of leave, then the time off on workers comp is not counted as FMLA. In that case, the employee may well be entitled to an additional 12 weeks of unpaid, job-protected leave under FMLA.

If the work restrictions are permanent, then the employee may very well have a disability under ADA, the Americans with Disabilities Act. If the restrictions are temporary, then he is probably not covered by ADA — but he still may be entitled to an additional 12 weeks of unpaid FMLA.

It is usually in your best interest as an employer to return the injured employee to work. Not doing so may result in you paying thousands of extra dollars in workers comp coverage because it will increase your premium for every employee, for many years. This is one of the reasons that you need to consult with an attorney on this issue.

Note that California also has additional family leave laws, and we have not even addressed them in this answer.