Human Resource Blog

Workers Compensation and FMLA

Who is responsible to offer FMLA when an employee is on workers complensation? The employer offers or the employee requests. What happens if employee rejects the offer or chooses not to apply for FMLA, can they come back at a later time and use it during the year?

In the case of workers compensation, it is the employers option. Usually the employer informs the employee that the employee is on FMLA leave, and on workers comp, simaltaneously. The employee must be notified in writing that they are on FMLA, at the beginning of leave. (If the employer fails to do this, the clock starts ticking on FMLA leave only when the employee is notified in writing.) This is precisely fo th ereason that you mention — so the employee cannot use 12 weeks of unpaid FMLA later in the year.

FMLA also protects the employees job if he or she is off for up to 12 weeks. Being on workers comp does not necessarily ensure that the employee will have a job to come back to.

Just so you will know, normally the FMLA process works like this: 1) The employee has an absence for a reason that might be covered under FMLA. 2) The employer must notify the employee within 5 days of the employees FMLA rights, and provide FMLA papers, including certification papers if necessary. 3) The employee has 15 days to return the FMLA papers. 4) The employer has a limited time to request more complete information, or inform the employee whether FMLA has been approved. These regulations are new for 2009.

With a non-workers-comp absence, if the employee fails to return the FMLA papers, the employee is treated like any other worker with an absenteeism problem. The employee can be disciplined or terminated for missing work.

With a workers comp injury, the employer usually waives the certification and FMLA request, because it is in the employers best interest to put the employee on FMLA. Many employees are surprised to learn that they can be put on FMLA even if they have not requested it.