The Intersection of the Family and Medical Leave Act (FMLA) and Workers Comp
Make Sure Your Employer Complies with the FMLA if You Suffer a Work-Related Injury or Contract an Occupational Disease. If It Doesn’t, Your Workers Comp Claim May Turn Into an Employment Lawsuit.
You have probably heard that workers compensation is your exclusive remedy if you are hurt on the job or diagnosed with an occupational disease. That means you cannot sue your employer for negligence under tort law and recover monetary damages for pain and suffering.
You still, however, have rights and may bring claims under various labor and employment laws after a workplace injury.
The purpose of this article is to discuss your rights under one of those laws, the Family and Medical Leave (Act), and when your employer’s actions during your workers compensation claim turn into violations of the FMLA and a potential employment lawsuit. Identifying these violations can increase the amount of your workers compensation settlement significantly, especially if you agree to voluntarily resign to settle your case.
Keep reading to learn more.
If you have any questions about employment or workers compensation law, call me for a free consultation: (804) 251-1620 or (757) 810-5614.
What is the FMLA?
Signed into law in 1993, the Family and Medical Leave Act requires certain employers to provide their employees with unpaid, job-protected leave for specific family and medical reasons.
Congress amended the FMLA in 2008 to cover military family leave.
Is My Employer Covered by the FMLA?
Only some employers are covered by the FMLA. These include:
- Private-sector employers with 50 or more employees in a 75-mile radius. All employees on the payroll, including seasonal and part-time employees and those on leave, count toward the 50-employee total.
- Public agencies, including local, state, and federal government agencies.
- Public and private elementary and secondary schools. If you are a teacher or teacher’s aide who was hurt on the job, you are likely covered by the FMLA.
Am I Eligible to Take FMLA Leave?
You are eligible to take leave under the FMLA if you work for a covered employer and you:
- Have worked for your employer for at least 12 months. The 12 months of employment do not have to be consecutive to take FMLA leave.
- Have worked at least 1,250 hours for your employer during the 12 month period before you take leave. This equals about 25 hours per week. Special rules apply to airline employees such as flight attendants for American Airlines and United Airlines.
- Work at a location where your employer has at least 50 employees within 75 miles.
How Much Leave Can I Take under the FMLA?
If you are eligible, you may take up to 12 weeks of leave in a 12-month period.
Different rules apply, however, to FMLA leave taken to care for a family member who suffers an injury or illness while on active military duty. In that situation, an employee may take up to 26 weeks of leave. But the leave does not renew every 12 months, it is a per-injury, per-service member leave entitlement.
Do I Have to Take My FMLA Leave All at Once?
No.
You may take FMLA leave on an intermittent basis. That means you can take leave in separate blocks of time. For example, many of my clients who have suffered neck or back injuries are authorized to miss up to three to four days per month if their symptoms are aggravated by physical exertion.
You may also take FMLA leave on a reduced scheduled basis. That means you can reduce the number of hours or days you work each week. For example, many of my clients who have suffered a head injury resulting in post-concussive syndrome work part-time to manage their stress and headaches better.
If, however, you need intermittent leave or a reduced schedule for planned medical treatment, you must make a reasonable effort to schedule treatment so that it does not disrupt your employer’s operations. That means you should work with your employer and medical providers to schedule physical therapy and any other palliative care, such as chiropractic treatment or acupuncture, at reasonable times.
When Can I Take Leave Under the FMLA?
You may use available leave under the FMLA for any of the following reasons:
- The birth of a son or daughter. A new parent may take FMLA leave within one year after the child is born. You may also take FMLA leave before your child is born if your child requires certain prenatal care.
- To care for a family member who has a serious health condition. Under the FMLA, only a spouse, son, daughter, or parent counts as a family member. Grandparents, in-laws, sibling, and same-sex partners are not included in the definition.
- To adopt a child, either permanently or through foster care. The same FMLA rules apply to this situation as apply to the birth of a child.
- A disabling health problem or serious health condition that prevents you from doing your job. The FMLA defines a serious health condition as one that requires inpatient treatment, is chronic, or makes you unable to perform normal activities for three days while under the care of a physician.
Does My Employer Have to Pay Me While I’m Out on FMLA Leave?
No.
FMLA leave is unpaid. It protects your job but does not provide cash assistance while you are out of work.
Can My Employer Force Me to Use Accrued Paid Leave, Such as Sick or Vacation Leave, to Cover My FMLA Leave?
Maybe. It depends on your employer’s normal attendance and leave policy.
If that policy requires employees to use their accrued paid time off (PTO) to cover some or all of your FMLA leave, then you may have to substitute PTO for FMLA leave.
What Documentation Do I Need to Take FMLA Leave? Understanding the FMLA Certification Process
Under the FMLA, your company can ask you to provide proof that you need leave for an FMLA purpose. If you are taking leave for a work injury or job-related illness, your employer can require you to submit medical documentation from a health care provider to support your request for leave. This is known as certification. And if you refuse to provide certification, your employer does not have to approve your request for FMLA leave.
Your employer may also require periodic recertification of your injury or serious health condition and, in certain circumstances, a second or third opinion. If your employer asks you to see a different doctor, call an attorney immediately.
Do I Get to Keep My Group Health Insurance Benefits While I’m Out on FMLA Leave?
Yes. If you have group health insurance coverage before you take FMLA leave, your employer must continue your coverage during FMLA leave on the same terms as if you had continued to work. That means you must continue to pay your share of the health insurance premiums to continue having coverage during your leave.
Do I Return to the Same Job When I Get Back from FMLA Leave? Understanding Your Job Protection Rights
Maybe.
You are not guaranteed the exact same job you had before the leave. Your employer, however, must provide you an equivalent job with similar pay, fringe benefits such as the payment of insurance premiums, and other terms and conditions of employment such as shift, location, and potential for overtime pay.
Overlap of FMLA and Workers Comp
Workers compensation provides cash payments and medical care when you suffer an injury or disease arising out of and in the course of your employment. But no job protection.
The FMLA provides job protection, but no cash payments or medical care.
When you suffer a workplace injury or occupational disease you may be eligible for both.
Let’s look at some of the most common questions that arise when an employee is eligible for both workers comp and FMLA leave.
Can My Employer Force Me to Use FMLA Leave While I’m Out Because of a Work-Related Injury or Occupational Disease?
Yes.
Some employers require employees to use FMLA leave to take time off work if they are hurt on the job or diagnosed with a job-related illness. This is legal. Under the FMLA, an employer can count the time you are out of work after an occupational injury as FMLA leave, even if you are receiving temporary total disability or temporary partial disability benefits.
Your employer must, however, notify you that it is having your FMLA leave run concurrently with workers comp leave.
Should I Ask My Doctor to Complete FMLA Paperwork if I Have an Open Workers Comp Case?
Usually, yes.
I am fine with my clients asking their health care provider to complete FMLA certification paperwork because (1) it helps you protect your job and (2) you can use the doctor’s FMLA certification to prove disability and to win your workers compensation hearing if there is a dispute. You can also use this paperwork to get approved for Social Security Disability benefits if you suffer a catastrophic injury, such as a herniated disc resulting in a spinal fusion surgery, amputation, burn injury, or traumatic brain injury, that prevents you from returning to work.
Do I Have to Market (Look for Work) to Receive Workers Comp Income Replacement When I’m Taking FMLA Leave?
Yes.
Under the Workers Compensation Act, you will not receive income replacement benefits if you are restricted to light-duty work unless you have a Workers Comp Award Letter or make a reasonable effort to look for work within your modified duty restrictions. As stated by the Virginia Workers Compensation Commission: “An employee must exercise reasonable diligence in seeking employment and the reasonableness of an employee’s effort will be determined on a case by case basis, taking into account all of the facts and surrounding circumstances.”
The majority of the Commission has determined that you have to look for light-duty work even if you have taken FMLA leave and plan to return to work for your pre-injury employer.
In Simmers v. Rockingham County Public Schools, Jurisdiction Claim Nos. VA00000853043, VA00000909108 (Dec. 16, 2015), the majority of the Commission denied benefits to a claimant who was out on FMLA leave, finding that she failed to conduct an adequate job search. This is problematic for several reasons. As Commissioner Marshall stated in his dissenting opinion:
Requiring the claimant to market under these circumstances places both her and the employer in potentially perilous positions. Requiring the claimant to market her capacity for light-duty employment outside the school system while she was still “off until March 2nd” on FMLA could be interpreted as interfering with, restraining or denying the exercise of FMLA rights and potentially subject the employer to consequential damages and equitable relief. The claimant’s uncontradicted and unimpeached testimony was that her FMLA leave and job protection would be void if she went to work for another employer. (Tr. 20, 29.) FMLA was her only protection to insure continued employment with the school system. The only logical conclusion from the evidence in the record is that the claimant reasonably expected to return to work by March 2, 2015.
I agree with Commissioner Marshall’s dissent. But to receive workers compensation payments you should look for light-duty work, even if you have job protection under the FMLA.
What Happens if I’m Still Out on Workers Comp Leave When My FMLA Leave Runs Out?
If you are unable to return to work when your FMLA leave runs out, your employer may terminate you under its attendance policy. Whether that is lawful depends on your rights under the Americans With Disabilities Act (ADA).
The ADA requires your employer to make reasonable accommodations for employees with disabilities. Extending FMLA leave may be one type of accommodation, if you ask for it.
You may still receive workers compensation benefits, even if your employer fires you after you exhaust FMLA leave. You may also receive unemployment benefits while waiting for your workers comp claim to be approved.
Common FMLA Claims Arising Out of Workers Compensation Leave
Many employers are unaware of their responsibilities under the FMLA, or choose to ignore them.
Other employers are aware of the procedural requirements for the FMLA, but make mistakes and fail to follow these requirements during workers compensation claims.
This may happen because various internal departments, such as human resources, safety, risk management, legal, and finance, are involved with different parts of your workers comp claim and fail to coordinate with each other. Or, it could happen because a workers compensation insurance carrier such as Travelers or The Hartford or a third party administrator (TPA) such as Sedgwick or Gallagher Bassett is handling your return to work and does not understand or recognize your rights under the FMLA.
No matter the cause, your employer may be liable for damages resulting from the violation of your rights under the FMLA after a work injury.
Let’s look at some of the most common FMLA violations that arise out of workers comp cases. If you believe your employer committed one of these violations, let your attorney know. You may need to bring a civil action in state or federal court because the Workers Compensation Commission does not have jurisdiction over claims under the FMLA.
Your Employer Must Notify You of Your FMLA Rights, Even if You Don’t Ask
If your employer is covered by the FMLA, it must give you notices about the FMLA. This includes:
- Displaying a FMLA poster that summarizes the important provisions of the law. The poster must be displayed in an obvious place where you can see it. If your employer has more than one location, a FMLA poster must be placed at each location.
- Notifying you of your eligibility status and rights and responsibilities under the FMLA. Notice may be either oral or in writing and must be given to you within 5 business days of your first request for leave or when your employer finds out that your leave may be for an FMLA-qualifying reason.
- Notifying you whether your leave after a work injury is designated as FMLA leave and the amount of time that will count against your 12-week FMLA leave entitlement.
- Responding to your questions about FMLA leave.
Your employer is required to take these actions even if you do not ask about FMLA leave.
Your employer’s failure to do so may be considered an interference with, restraint, or denial of your exercise of FMLA rights. Your employer may be liable for compensation and benefits that you lose because of this violation, as well as other monetary damages.
Your Employer Cannot Retaliate You by Refusing to Return You to Your Prior Job or to Continue Paying for Group Health Insurance Benefits
If you try to return to work after being out on both workers compensation and FMLA leave, but your employer terminates you or offers you a position that is not equivalent to your pre-injury job, you may have a valid employment lawsuit arising out of this FMLA violation.
The same is true if your employer fails to continue paying for your group health insurance benefits while you are out on both workers comp and FMLA leave, or refuses to continue contributing to your premiums after you return to work.
Your Employer Terminates You Because an IME Doctor Says You are Ready to Return to Work When Your Treating Physician Says You are Not
One of the most common defenses in workers comp claims is that the injured employee is not as disabled as alleged, or that the the employee’s disability is related to a pre-existing condition such as degenerative disc disease or arthritis and not the work injury.
To develop this defense, employers and insurance carriers often hire IME doctors to perform a short, one-time examination and to state that you are fine. The insurer then argues that the IME doctor’s opinion should be given more weight than your treating physician’s opinion and that you should either not receive benefits or your workers compensation benefits should stop.
While this may be a valid strategy when defending workers comp claims, it is not acceptable under the FMLA. Your employer cannot force you to return to work when you are out on FMLA leave just because an IME doctor thinks you are ready to return to full duty. As long as you have not exhausted FMLA leave and a health care provider certifies that you should remain out of work, your employer must protect your job.
Get Help Protecting Your Workers Comp and FMLA Rights After an On-the-Job Injury
Work injuries can result in time missed from work, bankruptcy-causing medical bills, permanent impairment, and even the loss of your career. But workers comp benefits, including lifetime medical treatment and permanent partial disability payments, and job protection under the FMLA can help you and your family survive financially, physically, and emotionally.
Protecting your rights won’t be easy. But as your workers comp lawyer, I can help. Email me at cpollardjba@gmail.com or call me at (804) 251-1620 or (757) 810-5614 for a free consultation. You can see some of the results I’ve obtained for other injured employees here.
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