WorkComp Advisory
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Coordinate FMLA & Workers’ Compensation or it will cost you time & money

The Family and Medical Leave Act (FMLA) is a federally mandated law that applies to employers with 50 or more employees and public agencies and schools. It allows eligible employees to take up to 12 weeks of job-protected leave to attend to family and medical problems, including medical leave when the employee is unable to work because of a "serious health condition."

While the law does not differentiate between work-related and non work-related injuries and illnesses, many employers treat Workers' Compensation leaves separately from FMLA and do not realize that a Workers' Compensation leave should trigger the FMLA process, even if the employee does not seek a FMLA leave.

The first step is to determine if the injured employee is eligible for leave under FMLA. If the employee is eligible, the employer should notify the employee in writing that the Workers' Compensation leave will run concurrently with and be treated against the employee's FMLA entitlement of 12 weeks. This notification must also include the proper information to meet FMLA requirements.

If the employer does not properly notify the employee, the employee may be entitled to an additional 12 weeks of FMLA leave. It is the employer's responsibility to establish the FMLA leave. If the FMLA leave is not triggered at the beginning, serious complications regarding health insurance coverage and COBRA, as well as reinstatement issues, can develop.

Supervisors, foremen, and superintendents often are unfamiliar with FMLA requirements. It is important that they be trained and a procedure is in place to immediately notify HR personnel of Workers' Compensation leaves.

FMLA and return-to-work
If an injured employee is offered modified duty to return to work and is on FMLA leave, The employee can refuse the modified duty position. However, FMLA leave is meant to be unpaid; while medical payments will continue under Workers' Compensation the indemnity may discontinue with the refusal to return to work. The employee then can be allowed to use any accrued paid leave (vacations, sick time, etc.) during the remaining unpaid FMLA leave.