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Workers' Compensation and FMLA

Employees who find themselves unable to perform their job duties due to an injury or illness may need time off from work to receive the necessary medical treatment and recover. This can place a burden on the affected worker and their families. There are also times when family needs require a worker to take time off from work. Such employees may be eligible for workers’ compensation, which provides a partial salary and medical care for the injury or illness. In addition, most California employees have avenues available to them to protect them from losing their jobs when they request medical leave or short-term leave from work.

Each state has its own Workers’ Compensation laws that protect individuals hurt at work. California has the California Family Rights Act (CFRA), which serves the same purpose as the federal Family and Medical Leave Act (FMLA). The state worker’s compensation and the federal FMLA laws may both cover an employee who suffers a serious health condition while at work. State and federal leave laws typically apply to employees who have worked for more than a year and to employers who hire a certain number of employees. All of these laws are different but designed to benefit workers dealing with serious health issues.

Unfortunately, some employers ignore these laws and the rights of their employees. Fortunately, there are several legal avenues available for the affected workers. With the help of an experienced attorney, employees can take legal actions to seek compensation for any resulting damages. The lawyers at Orange County Workers’ Compensation Attorney have a vast experience helping victimized employees find solutions to complex workers’ compensation laws. We also have an in-depth understanding of state and federal laws surrounding family and medical leave. Our law firm addresses an array of violations, including when employers refuse, demote, harass, decrease the pay, or terminate an employee for requesting or taking medical or family leave under FMLA in addition to workers’ compensation.

Contact us today to learn how we can help you with your case.

Workers’ Compensation Basics

Workers’ compensation is a state level insurance program designed to ensure that workers who suffer work-related injuries or illnesses receive medical treatment and partial salary. If you have an injury that only requires medical care with no time lost from work, workers’ compensation benefits will completely cover your medical expenses. Conversely, you may be eligible to receive partial salary compensation if you lose time from work and meet the qualification listed in your state. Workers’ compensation laws create a system in which employees need not sue an employer to get compensation to pay medical bills following a workplace injury and also need not to fear bankruptcy over a workplace accident. Workers’ compensation benefits also cover retraining needed if an employee is forced to seek a new job position or line of work due to the illness.

Common injuries covered include burns or respiratory diseases associated with the use of chemicals, back injuries from a fall or lifting heavy objects, injury from repetitive motions, and some stress-related injuries. Workers’ comp covers all injuries suffered while one is performing their job duties, including those incurred at an off-site location such as in the course of a business trip.

FMLA Basics

In the most basic sense, the Family and Medical Leave Act (FMLA) is a law that was enacted by the federal government and establishes a minimum standard for leave. It is meant to protect employees who need to be away from work for an extended period of work because of their own injury or illness or a close family member’s. A “close family member,” in this case, is a child, spouse, or parent, but not an in-law. FMLA is more inclined towards offering protection since it does not require that an employee be paid their normal wages and salary during their time off from work.

The FMLA applies to all private businesses and public agencies, including local, state, federal employers, schools with 50 or more full-time employees within a 75-mile radius, for 20 or more workweeks in the preceding or current calendar year. To be eligible to obtain leave under FMLA, one must have been employed for at least 12 months and work for at least 1,250 hours during the year. The FMLA requires employers to provide up to 12 weeks of unpaid leave to eligible employees during any 12 month period. The law specifies acceptable reasons for taking leave, calls for continued medical insurance coverage and job and benefits protection and also provides for reduced and intermittent leave.

Reasons for taking leave under FMLA include:

  • The birth of a child, or to take care of a newborn, a new foster care placement, or a newly adopted child
  • An employee’s own serious health condition that hinders him/her from performing their job duties
  • To care for a parent, spouse, daughter, or son who has a serious health condition

A “serious health condition” under the FMLA is an injury, impairment, illness, or mental or physical condition that involves

  • A period of incapacity requiring more than three days off work and also involves continuing treatment.
  • Any period of treatment or incapacity linked to inpatient care
  • Any period of incapacity or treatment as a result of a chronic health condition
  • Any period of incapacity connected with pregnancy or prenatal care
  • Any absences to receive multiple treatments as well as the recovery period for a condition that would likely result in more than 3 consecutive days of incapacitation
  • A period of long-term or permanent incapacity as a result of a condition for which treatment may not be effective

Job protection is the main purpose of the FMLA and this means that covered employers are obligated to restore an employee to their position of employment when the at the end of the leave or to an equivalent job with equivalent benefits, pay, and other terms of employment.

Worker’s Compensation and FMLA Running Concurrently

An employee’s workers’ compensation absence and FMLA leave entitlement may run concurrently when the work-related injury or illness is one that meets the criteria for “serious health condition” under the FMLA.  As such, an employee could have their job protected and health benefits maintained under the FMLA while at the same time receiving workers’ compensation benefits to replace lost wages. Simply put, a worker may be off work receiving workers’ comp benefits, and the time off is also counted against the 12-week unpaid, job-protected leave under the FMLA.

In situations where both workers’ compensation and FMLA laws apply, the employer is required to designate the leave as FMLA-qualifying, if appropriate, and must also inform the employee of the same. If the employee fails to do this, the employee may still be entitled to FMLA leave at the end of their workers’ compensation absence. If the employee needs to take additional workers’ compensation medical leave after exhausting their FMLA leave, the “reasonable accommodation” under California’s Fair Employment and Housing Act may come into play. And given that medical leave can involve a scenario where reasonable accommodation is needed, an employer may have to extend an employee’s leave even if his/her statutory medical leave has been exhausted.

The employer must also provide leave under whichever law provides greater benefits and rights to the employee. For instance, if an employee’s injury makes them eligible for the workers’ compensation benefits, the employer cannot require them to take time off under FMLA instead.

This can be advantageous to an employee because:

  • The employer is obligated to continue the employer’s health coverage while on leave, and
  • The injured worker’s job position must be kept open until he or she returns to work. The employer cannot force the worker to return to “light duty.” There are provisions under Workers’ Compensation laws that touch on returning to work with restrictions as well as the reasonable accommodation that the employer must provide.

Can an Employer Force a Worker to Take FMLA Instead of Workers’ Compensation Benefits?

The practice of requiring a worker to use FMLA to take time off work following a work-related injury is technically legal. Under FMLA laws, it’s legal for an employer to count an employee’s time out as family and medical leave even if the employee is receiving workers’ compensation benefits, provided the reason for the leave meets the FMLA requirements already stated.

In some cases, an employer may favor FMLA when an employee is entitled to and may want to receive workers’ compensation benefits. The reason for doing this boils down to costs. An employer is not obligated to pay wages to an employee on an FMLA leave but is required to allow the worker to receive benefits such as those for health care. Should the employee file a workers’ compensation claim, the insurance purchased by the employer will be used to cover such expenses. What’s more, such filings may result in an increase in the premiums that the employer will be required to pay in the future. This is the main reason why an employer may want to direct their employees toward taking time off under FMLA rather than filling a workers’ compensation claim. However, before making any determinations, employers must do their do due diligence in order to ensure that they’re not allowing their employees to exhaust the benefits they may be entitled to because of workers’ compensation laws.

Employer Violations of FMLA and Workers’ Comp Laws

Under California Workers’ Compensation Code Section 132(a), it is unlawful for an employer to fire an employee due to a work-related injury or illness. Employees are entitled to their workers' compensation benefits even while they are on leave under FMLA.

Examples of FMLA and workers’ compensation violations include:

  • Changing an employee’s role after returning to work
  • Firing an employee for filing a workers’ compensation claim and taking leave because of a serious health condition
  • Terminating an employee for complaining that the employer is in violation of FMLA or workers’ compensation rights
  • Terminating an employee after an employee takes leave to care for a close family member suffering from a serious health condition

Employers are prohibited from interfering with the rights of an employee to receive workers’ compensation benefits and take FMLA leave, or retaliating or discriminating against an employee for utilizing FMLA. They are also prohibited from making decisions or taking actions regarding hiring, disciplinary activity, or promotions based on an employee’s decision to take FMLA. In addition, an employer cannot withdraw any employment benefit that the employee was entitled to before taking FMLA leave and cannot count the FMLA leave against the employee under a no-fault attendance policy.

There are typically no federal laws that tell employers how to integrate the FMLA and workers’ compensation issues but the Department of Labor has ascertained that workers’ compensation leave and FMLA leave can run concurrently, as long as a qualifying serious injury or illness is the reason for the absence and the employer makes the employee know that the leave will be considered as FMLA leave.

In most cases, time off from work to recover from a work-related injury simultaneously qualify for FMLA protection. As per the DOL advisory, the employer should notify the injured employee in writing failure to which the worker may be entitled to additional time off with job protection benefits as well as the period of workers’ compensation disability leave. An employer may start the clock on an employee’s FMLA leave at the same time that the workers’ compensation medical leave is approved. What’s more, an employer may unintentionally violate the FMLA if a worker is not properly reinstated after returning to work for a work comp injury that wasn’t designated as FMLA leave. An employee’s case usually become complicated when the disability status requires extended time off of work.

Upon a work-related injury or illness, notifying workers that the company’s policy allows for a concurrent application of FMLA leave and workers’ compensation leave should be a part of the employer’s calendaring of activities.

Consult with an Orange County Workers Compensation Attorney Near Me

If you’ve suffered a work-related illness or injury and believed you may be qualified for both the workers’ compensation and FMLA programs, you should consult with an Orange County Workers Compensation Lawyer right away. We can help you determine which benefits you’re entitled to and will ensure that your rights are protected. We can also ensure that you have access to the medical care you need and that your job is protected. Worker’s compensation claims can be very complicated, especially when FMLA leave comes into the picture.

Call us at 949-423-3212 or fill in our online consultation form to speak with one of our attorneys. 


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