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FMLA and Workers’ Compensation

  • Dave Brown, Esquire
  • 02/22/2021

If you injure yourself at work and cannot perform your regular duties, you may get bombarded with paperwork from your employer’s workers’ compensation insurance company. They are required to send you documentation, indicating whether they are accepting or denying your claim; if they accept your claim, the insurance company must indicate whether they are accepting just the medical portion of your claim, or the medical and wage loss parts of the claim.

You may also receive a letter from your employer concerning your entitlement to unpaid medical leave under the Family Medical Leave Act, also known as the FMLA. You could be swimming with the all the paperwork flooding your mailbox so we’re going to make it easier for you by explaining the nuts and bolts of FMLA leave and how it intersects with your rights under Pennsylvania workers’ compensation law.

The FMLA was enacted to provide employees with job protection for a 12-week period under certain circumstances: caring for a newborn child; caring for a seriously ill family member; and recovering from a serious medical condition. Only the “serious medical condition” section is applicable in the setting of a workers’ comp. claim. The term is broadly defined under the FMLA. The definition which is invoked most in workers’ comp. cases is: “a period of incapacity requiring absence of more than three calendar days from school, work, or other daily activities, that involves treatment by or under the supervision of a healthcare provider.” This definition is easily satisfied if you have injured yourself at work, missed at least three calendar days, and are under the care of a doctor.

Other requirements must be met for you to qualify for FMLA leave, some of which involve you, and some of which involve your employer. These requirements include:

  • You must be employed by your employer for at least 12 months and worked at least 1,250 hours over the previous year. That’s an average of 25 hours per week.
  • Your employer has at least 50 employees within a 75-mile radius. If you work at a factory or office which employs 30 people, and there’s a second location in Reading or Downingtown that employs 30 people, the 50-employee requirement is met. If you’re working for a small family business which employs 15 people and there is only one location, your employer will not qualify.

If these basic FMLA requirements are met, the HR Director for your employer will likely ask for documentation from one or more of your medical providers, substantiating your medical condition.
If your FMLA leave is granted, for the 12-week period, your employer will protect your job and the benefits to which you are entitled, such as healthcare benefits. At the end of the 12-week period, your employer is required to make available to you the same job you were performing before the leave or a job with similar pay and benefits. Things can get tricky, though, if you have sustained an injury at work but your doctor has not released you to your normal job at the end of the 12-week period. Under that scenarios, your employer is not obligated to hold your job open indefinitely and rehire you at a later date.
In the same vein, Pennsylvania workers’ compensation law does not require your employer to hold your job open while you recover from your work injury. Some employers hold injured workers’ jobs open for various periods of time, but if it appears that you are not going to be your job, your employer may make a business decision by filling your position and terminating your employment. It sounds harsh, but unfortunately an employer does not have a legal obligation to hold an injured worker’s job open – except if the employee has 12-week FMLA protection or is a member of a union and afforded job protection under a collective bargaining agreement.
Can an employer retaliate against an employee by firing him or her for pursuing a workers’ comp. claim? No, but it is difficult to prove retaliation. Termination of an employee who has filed a workers’ comp. claim does not constitute retaliation, in and of itself – there must be some tangible evidence of retaliation, such as a comment by a management-level employee that the decision to terminate was motivated by the employee’s filing of the workers’ comp. claim. These types of lawsuits are filed outside the workers’ compensation arena.
The bottom line is that you can be out on FMLA leave while you’re pursuing a workers’ compensation claim, and this will not jeopardize your rights in your workers’ comp. claim. Let’s say that you injure yourself and cannot work, and the insurance company begins to pay you workers’ comp. wage loss benefits. Meanwhile, your employer approves your FMLA leave. Ten weeks later, you have improved significantly, and you are ready to return to your job. Because you are still within the 12-week FMLA period, your job will be protected, and you will be permitted to return to work.
Let’s say that at the end of the 12-week period, you still haven’t recovered to the extent that you can go back to your full-duty job because it involves heavy lifting. However, your doctor has released you to return to work with a maximum of 20 pounds lifting. Notwithstanding that your FMLA leave has run out, your employer may but not necessarily will offer you a light-duty position within your doctors’ restrictions, which will allow you to return to work. If the offer is made and you don’t return, the insurance company will likely file a petition to reduce your benefits.
Don’t fret if you have gotten hurt at work and are drowning in paperwork. We will help you. At Pearson Koutcher Law, we handle workers’ comp. cases 100% of the time – it’s all we do. We understand that FMLA issues sometimes arise in workers’ compensation cases, and we will advise you so you understand the interplay between your workers’ comp. claim and your FMLA leave. Please call us for a free, comprehensive evaluation and see if we can put our extensive experience to work for you.