Workers Comp and FMLA:

•How they work together

•How to handle leave-related employment situations

Mandatory federal leave law intended to protect employees who need to take time away from work for certain family and medical problems, including the employee’s own “serious health condition”.

FMLA

Governed by state laws that protect employees who are injured while working.

Varies by state, but generally includes income continuation, medical treatment, rehab, and disability.

Does not mandate leave.

Workers Comp

Workers Comp Leave

FMLA

The two leaves should run concurrently

Protects the employer from any obligation to grant FMLA after the WC leave until eligibility requirements are once again met.

Protects the employee by granting all rights provided by the FMLA.

Why Designate WC Leave as FMLA?

When an employee will miss time due to work-related injury

◦ Immediately determine eligibility for FMLA.

◦ Immediately send notice that FMLA will run concurrent with WC leave. Dept. of Labor Form WH-381 can be used (same as notification for any FMLA leave).

◦ Leave begins when employee is notified – if employer fails to notify, leave cannot be made retroactive.

◦ If an employee has missed time due to a work-related injury and has NOT been placed on FMLA, do so immediately.

HR Best Practice

Workers’ comp typically provides income replacement (2/3 of salary)

Therefore, FMLA regulations do NOT allow the use of paid leave if employee is receiving workers’ compensation.

Vacation, sick, or other paid leave payment while on FMLA for work-related injury:

Employee must be reinstated to the same, or an equivalent, position

Workers comp is treated like any other FMLA leave

When employee is medically cleared to work during 12-week FMLA period:

Employee may be terminated, provided that:

◦ The termination is consistent with the treatment of similarly-situated employees who have taken FMLA leave

◦ The employee was properly placed on FMLA leave and notified that the time off for WC leave ran concurrently with FMLA.

◦ Possible ADA accommodations have been considered

When employee is NOT medically cleared to work at the end of 12-week FMLA period:

Employer must reinstate any employee if the employee recovers within two years of the onset of the disability (21 V.S.A. §643b)

Does not need to be the same job, but must reinstate him/her to “the first available position for the worker given the position the worker held at the time of the injury”.

Employee is obligated to stay in touch with employer regarding his/her status

Reinstatement Obligations Under VT State Workers

CompensationLaw

Employee misses time due to work-related injury

Determine eligibility for FMLA

If eligible, mail FMLA notification and info

If employee returns within 12 weeks, reinstate to same or

equivalent position

If employee does not return after 12 weeks, proceed with

employment termination after appropriate review (proper

FMLA notification, ADA accommodations, etc.)

Provide employee with relevant term info (COBRA,

etc.) and explain 2-year reinstatement window

When employee medically cleared to return, must be

reinstated into any comparable position that

becomes available

If not eligible, proceed with normal WC procedures

Workers Comp Missed-Time Flowchart

Workers Comp Injury

Lost Work Time

FMLA

Simple Rule of Workers Comp:

Being on FMLA or WC leave does not protect an employee from termination if the job would have terminated of its own terms

However, the injured worker, even if terminated, could still be entitled to ongoing WC benefits, including Vocational Rehabilitation

Terminations Involving Employees on WC and/or FMLA Leave

◦ Layoff or job elimination

◦ Non-renewal of contract

◦ Work-related issue that warrants termination and comes to light while employee is on leave

Examples of a job terminating on its own terms:

Should be made irrespective of an employee’s leave status

Should be well documented when involving an employee on leave, so that it does not appear to be retaliatory, particularly when a workplace injury is involved

◦ Pursuant to statute 21 V.S.A § 710(b), “No person shall discharge or discriminate against an employee from employment because such employee asserted a claim for benefits under this chapter or under the law of any state or under the United States”.

Termination Decisions:

Employee gets hurt on the job one week after giving 2 weeks notice of quitting his job. ◦ Can you terminate his employment after his 2-week

notice? Yes

◦ Are you obligated to reinstate him when he is able to return?

No

NOTE: This is one of many reasons why it’s important to get a resignation letter, including an effective date, from any resigning employee. In this case, it provides clear evidence that his employment was ending.

Possible Scenario:

You have an employee who is out on worker’s comp whose contract is not being renewed. He was notified of this prior to his injury.◦ Can you terminate him?

Yes

◦ When would his effective termination date be? the day his contract ends

◦ Are you obligated to reinstate him when he is able to return? No, because the job was being eliminated regardless of his status; i.e., it was terminating of its own terms.

Possible Scenario

You have an employee who is out on worker’s comp whose contract you don’t want to renew due to performance. He was NOT notified of this prior to his injury. Can you terminate him?

Only after consulting with counsel to make sure you have enough documentation of his performance. A termination in this case could be construed as retaliatory for getting hurt on the job.

Add a twist:

You need to make 3 staff cuts. No employees have yet been notified. The three positions have been determined, and one of these employees is currently on FMLA and will still be on FMLA when the cuts will be effective.

Can you terminate this employee?Yes

When will the termination be effective? The same date it would have been effective

had the employee been actively working.

Possible Scenario

Proper documentation, common sense, and understanding your legal responsibilities should alleviate most of your anxiety!

Don’t be afraid of terminations involving employees on leave!

Susan GrahamInterim HR Advantage, LLCsgraham@interimhrvt.com

(802) 279-1117