Q: How do leaves for
on-the-job injuries interact under the Family and Medical Leave Act (FMLA) and
the workers'' compensation statutes?
A: If the employee is eligible for leave under the FMLA and
the on-the-job injury is considered a "serious health condition," the
workers'' comp leave should be treated as FMLA leave also. The FMLA defines
serious health condition broadly to include any "illness, injury,
impairment, or physical or mental condition that involves" either
inpatient care or continuing treatment by a health care provider. The statute
does not distinguish between work-related and nonwork-related injuries. Thus,
any on-the-job injury that requires an employee to take leave to seek inpatient
care or continuing treatment likely will be covered by the FMLA.
Accordingly,
whenever an employee is injured on the job and needs time off to recover, you
should determine immediately if the employee also is eligible for leave under
the FMLA. If the employee is eligible, you should notify him in writing that
the leave is covered under the FMLA so that the leave time may be counted
against his 12-week FMLA entitlement. If you do not run the employee''s comp
leave concurrently with the FMLA leave, he still may have the full 12-week FMLA
entitlement available to use after his or her comp leave expires.
If
the employee has been on workers'' comp leave without being placed specifically
on FMLA leave, you should send notice to him immediately so that the FMLA clock
starts running. You may then designate the leave only from the date written
notice is provided to the employee. You cannot retroactively designate the time
spent on workers'' comp leave against the FMLA entitlement.
The
FMLA allows you to require employees to substitute accrued vacation, sick, or
other paid leave for all or part of the 12 weeks of unpaid leave. Employees on workers'' comp leave typically receive up
to two-thirds of their normal pay as a wage benefit under state law. In
recognition of that benefit, the FMLA regulations do not allow the use of paid leave if the employee is receiving
workers'' compensation, even to compensate the employee or if requested by the
employee. You may, however, designate the leave as FMLA leave and count it
against the employee''s 12-week FMLA entitlement.
Most
light-duty positions do not include the employee''s normal job functions.
Therefore, if the employee is unable to perform the essential functions of the
job because of the work- related injury, he may continue to take any remaining
FMLA leave and cannot be required to accept the light-duty position. If the
state workers'' compensation statute requires the employee to take the
light-duty assignment to continue receiving wage benefits, however, the
employee''s workers'' comp benefits may be discontinued. The employee then must
be allowed to use any accrued paid leave during the remaining unpaid FMLA
leave.
If
the employee is covered under the FMLA, he must be reinstated to the same or an
equivalent position. The employee must be reinstated even if you did not notify him of coverage under the FMLA. If the
employee does not return to work at the end of the 12-week FMLA leave, you may
terminate him without violating the FMLA as long as the termination is
consistent with the treatment of similarly situated employees who have taken
FMLA leave. The employee must have been properly placed on FMLA leave and
notified that the time off for workers'' comp leave ran concurrently with the
FMLA. As a further complication, the employee may be considered disabled under
the ADA and, therefore, may be entitled to additional leave as an
accommodation.
Copyright
2000 M. Lee Smith Publishers LLC.
This
article is an excerpt from Arkansas Employment Law Letter, written by the
Little Rock-based law firm of Jack, Lyon & Jones, P.A. Arkansas Employment Law Letter should not be construed as legal
advice or a legal opinion on any specific facts or circumstances. The contents
are intended for general information purposes only. Anyone needing specific
legal advice should consult an attorney.
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