January 17, 2012
Workers' Compensation and FMLA Conflicts: What Are Your Options?

Workers’ compensation and FMLA laws have differing goals, but often employee needs create an overlap or conflict between the two. For example, you may have a situation where an employee claims workers’ compensation, but is unable to return to work, with or without accommodation, for several months. What are your options? What happens after he or she has exhausted FMLA leave?

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Complicated issues like these arise all the time when the line separating employee FMLA rights and applicable workers’ compensation coverage isn’t always clear. Employer rights and obligations can get murky, and it’s imperative that you know how to determine precisely what you can and can’t do when facing the treacherous triangle of disability and leave laws.

In a BLR webinar titled "FMLA, ADA, and Workers’ Comp Overlap: Overcoming New Compliance Conflict," Peter J. Gillespie outlined some guidance on the goals of the workers’ compensation and FMLA laws, as well as some commonalities to keep in mind.

Workers’ Compensation and FMLA: What Are They Trying to Achieve?

The FMLA focus is the provision of 12 workweeks of unpaid leave for a qualifying employee, even if it’s an undue hardship for the employer, with job protection upon return and benefit continuation throughout the leave.

Workers’ compensation focus, on the other hand, is to provide compensation and medical expenses for work-related injuries, regardless of fault for the injury.

Workers’ Compensation and FMLA: The Overlap and the Differences

Even with these differing goals, there are common areas of overlap between workers’ compensation and FMLA in practice, including employee entitlement to full-time leave, the right to reinstatement upon return, and the employer’s obligation/opportunity to place the employee on light duty when applicable. Gillespie clarified in the webinar: "your typical workers comp statute is not going to have anything in it about a right to be restored to a job. But, on the other hand, the workers’ comp statutes all have anti-retaliation provisions in them that would be triggered from a litigation perspective if you had somebody who’s been out on workers’ comp leave and . . . [you] tell them that the position is no longer available to them. So while it’s not [an] expressed duty, it’s certainly implied within retaliation framework that that position would be available when they need to come back."

Additionally, there are some leaves that would be covered by both workers’ compensation and FMLA laws. For example, a work-related injury that requires in-patient treatment or that keeps the employee out more than 3 days plus treatment would be a leave that would fall under both workers’ compensation and FMLA. Another example would be a work-related injury that is a chronic serious health condition under FMLA.

In these types of cases, you just need to be sure you designate the leave as FMLA-qualifying to begin the FMLA countdown on the 12 weeks. Gillespie noted: "where you have an employee who gone out on workers’ comp leave, it’s important to remember to let whoever’s running your FMLA program know that you’ve got the employee going out, so that if notice is appropriate under the FMLA or would be required under the FMLA that that also be given. [This is] so that you can avoid a situation where somebody’s been out for a period of time due to a work-related injury . . . [and] at that point the employee would request FMLA and says that ‘none of my prior time can be designated because I didn’t get notice.’"

Light duty is an area where workers’ compensation and FMLA differ. Under the FMLA, an injured employee may reject light duty. However, this refusal may jeopardize workers’ compensation benefits. If the employee accepts light duty, then his or her reinstatement rights do not end until the end of the leave year.

For more information on workers’ compensation and FMLA overlap, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.

Attorney Peter Gillespie is Of Counsel in the Chicago office of Fisher & Phillips LLP. (www.laborlawyers.com). He represents and counsels management on a wide array of employment law-related issues, including workplace discrimination and harassment, covenants not to compete, wage and hour laws, retaliation, hiring, promotion and dismissal decision-making, workplace privacy, genetics-based discrimination, data retention, compensation, fraud, defamation, occupational health and safety issues, and statutory compliance.

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