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FMLA/Workers’ Comp

A nurse with chronic migraine headaches was certified for FMLA in 2014. She was injured at work in June 2014 and went off of work for shoulder surgery related to her injury in September 2014. Her employer used her accumulated time off in addition to her FMLA leave time before paying short term disability (while comp claim is pending). She was off for three months and returned to work in January 2015. If workers’ comp approves her claim for payment, will she be able to get her FMLA leave time back? If not, when would she be eligible to be re-certified for FMLA? I know this is complicated, however, she continues to miss work 1-2 days a month for her chronic migraines. Without FMLA she will be subject to disciplinary action for missing work. She feels she is being punished because she was injured at work.

There are quite a few different laws to consider in this situation. Each law has its own guidelines that must be followed. Though benefits under these laws can overlap, it’s important to abide by each law separately and ensure the employee receives her full entitlements under each law.

The federal Family & Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a 12 month period for specified family and medical reasons. The 12 weeks can be used all at once or intermittently.

Employers may choose one of four methods to establish the 12-month period: the calendar year, any fixed 12-months, the 12-month period measured forward or a rolling 12-month period measured backward.

When the employee would again be eligible for FMLA leave depends on the method used.

Workers’ compensation is an insurance program that provides benefits to employees who suffer job related injuries and illnesses. Each state has its own workers’ comp regulations. In general, regardless of who was at fault, in exchange for workers’ comp benefits, employees may not take legal action against the employer for damages related to the injury or illness. Benefits include wage replacement, the payment of related hospital and medical bills and, at times, payments for rehabilitation and retraining.

Unlike the FMLA, workers’ comp is not a leave benefit and doesn’t guarantee job reinstatement. However, some state workers’ comp laws specify an amount of time off an employee is entitled to or job reinstatement rights. Thus, it’s important to know employer obligations under state law.

An employee’s workplace injury may qualify as a “serious health condition” under the FMLA. In this case, both the FMLA and state workers’ comp laws apply. An employee may be receiving workers’ comp benefits while the time off is counted against the employee’s 12-week entitlement to job-protected FMLA leave. Thus, the employee in question is not entitled to have any FMLA leave returned her simply because she is retroactively approved for workers’ comp benefits.

At times, an employee’s workplace injury can also be considered a disability under the Americans with Disabilities Act (ADA). The ADA requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

Under the ADA, an individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment or is regarded as having such an impairment.

Depending upon the employee’s conditions, either her workplace injury or her chronic migraines, she may be covered under the ADA. Thus, it’s in your best interest to consider if the ADA applies and, if so, what reasonable accommodations can be provided to permit her to perform her job functions. It sounds like the employee’s chronic migraines, not the shoulder injury, are causing her absences.

Thus, click here for more information about the application of the ADA as it relates to chronic migraines.

Short term disability (STD) insurance is a benefit that provides partial wage replacement for employees who take leave due to an injury, illness, or childbirth. STD doesn’t guarantee job reinstatement. Usually, company policy dictates the time frame an employee can be on STD.

It seems as though the employee was approved for FMLA leave due to her chronic migraines prior to her injury at work. So, why does the employee feel she is being punished for the injury? Are you providing the employee with sufficient information regarding her FMLA leave entitlements including the rights/responsibilities and designation notices? If so, she should be aware of both employee and employer obligations under the FMLA. Make sure she also understands the difference between the different laws that apply to her situation and her entitlements under them.

Remember, retaliation for filing a workers’ comp claim is illegal in most, if not all, states and retaliating against an employee for exercising her rights under the FMLA is a violation of federal law. Thus, taking the time to clearly explain her entitlements under applicable laws and her responsible under company policy will reduce the risk of her feeling retaliated against further reducing the risk of her filing retaliation claims.


This entry was posted on Thursday, July 23rd, 2015 at 7:18 pm and is filed under
Attendance Management, Benefits, Labor Laws.
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