Workers' Compensation and FMLA

The Family and Medical Leave Act (FMLA) is a federal law that permits qualified workers to take unpaid work-protected leave for specific family and medical reasons.

Eligible employees could take an FMLA leave for a severe health condition, bonding with a newborn, or preparation for a loved one's military service, among other reasons.

Who is Eligible?

You qualify for an FMLA leave if

• You have worked with/for your employer for at least a year

• You worked for a minimum of 1250 hours in the previous year

• You work at a location with more than fifty workers within a seventy-five-mile radius

How Much is FMLA Leave Available?

You could take up to twelve weeks of FMLA leave in a year for any of the family and medical reasons mentioned above. The leave is renewed every twelve months provided you continue to meet the qualification requirements mentioned above.

If you want military caregiver leave, you could take up to twenty-six weeks in a year. However, the leave period depends on the injury and service member entitlement.

To qualify for FMLA leave, you must reasonably give your employer notice. FMLA employees' notice requirements vary depending on the surrounding circumstances, but here are the general guidelines for an employee:

• Foreseeable Absence

  If you know you will require a leave at a specific time, you should notify your employer at least thirty days prior. For instance, if you have a scheduled treatment or surgery resulting from a work-related injury, you are supposed to give a 30 days' notice.

  You can give your notice through email, letter, by phone or fax, or in person. It is advisable to put the notice in writing since it prevents misunderstandings in the future. If you are not in a position to give the notice because you are unconscious, a person close to you should do it on your behalf.

• Unforeseeable Absence

  No one can tell when an accident will occur, and as a result, you need to take time off at a moment's notice. The law allows you to give your employer an "as soon as practicable" or reasonable notice depending on your case's circumstances and facts.

• Normal Call-In Procedures

  Even if your reason for requesting leave is valid, your employer's call-in procedure should be adhered to unless circumstances hinder you from doing so. For instance, being hit unconscious in a construction site accident can make you unable to follow the normal procedures.

  Failure to follow your company's normal call-in procedures could lead to a delay or even denial of your request.

Information Required for FMLA Notice

It's not a must that you explicitly mention your rights under the law or mention FMLA by law. Nevertheless, you should give your employer adequate information that will assist them in understanding it is an FMLA-protected leave.

Your employer may request certification of your need for leave. These are forms filled out by doctors that certify the need for leave under FMLA. Typically, employers ask for this certification within five days after an injured employee issues them with notice that they need leave.

However, that does not mean the employer cannot ask for the certification later. The employer may ask for the certification later if they have a reason to doubt about the duration of the leave or whether the leave was appropriate.

Certification for FMLA leave is not an open book for the employer. It only includes the amount of time the medical condition is expected to exist and how the severe health condition hinders the employee from working. If the form isn't filled out correctly or completely, your company could ask for the form to be filled out completely or for clarification. The company should specify in writing what areas need to be clarified. You have seven days to get this done.

California is among the few states with a no-fault employees' compensation system that benefits both the employers and employees. Employees can't file a lawsuit in court against their company, and as a result, the workers do not have to prove that their employer's negligence caused the work-related injury. The compensation system provides injured employees with several benefits like:

• Medical treatment expenses

  This includes all costs related to medical treatments. They include bills for surgery, medical evaluations, treatment, prescription drugs, ambulance costs, and medical aid devices. Injured employees are also entitled to transportation costs to doctors' appointment reimbursement at the Internal Revenue Service mileage rate of fifty-four cents per mile.

• Temporary disability payments

  You are also entitled to temporary disability payments for the time you miss work as a result of the injury. Compensation awarded is 2/3 of your average weekly income. You could receive temporary disability benefits for up to two years from the date of your injury, which is technically a maximum of 104 weeks with five years. However, if you have a chronic lung condition, pulmonary fibrosis, eye injury, hepatitis B or C, amputation, HIV or severe burns, you're entitled to 240 weeks of TPD payments.

• Permanent disability payments

  These are damages awarded to an employee whose injuries affect their ability to go back to their job or compete in the current job market. The total amount compensated depends on the employee's age, occupation, the seriousness of the injury, and treating doctor's limitations. Depending on the disability rating, you could be awarded permanent disability benefits for four weeks to a maximum of fourteen years.

• Vocational retraining expenses

  Vocational Retraining expenses are also referred to as supplemental job displacement benefits. You are eligible for these benefits if you can't return to your previous job or your employer didn't offer you modified or alternative employment. You will be awarded a $6,000 voucher for education-related retraining at a state-approved school. This voucher covers books, tuition, and fees.

• Life pension payments

  Employees with a permanent disability rating of 70% to 99% (severely disabled) are entitled to life pension payments. It is a weekly payment on top of the weekly permanent disability reimbursement. However, unlike permanent disability payments, you can collect life pension benefits for the rest of your life.

• Death benefits

  These are benefits awarded to spouses and dependents of an employee killed while performing a work-related task. It includes burial expenses.

The workers' comp laws and FMLA can overlap when a worker sustains a work-related injury or disease that is a severe health condition under FMLA law. If this occurs, both laws run concurrently. In Layman's language, you may take a leave that is counted against your 12-week rights to job-protected FMLA leave, and simultaneously receive workers' comp benefits. You will also maintain your group health benefits. For instance, you may get an FMLA Leave if your head was hit by a hard object in a construction site accident and have to undergo a head surgery.

Remember, workers' comp requires medical proof that you were injured while working.

In these situations, you will be provided a leave under the law with the most considerable benefits and rights. That means your employer should not expect you to take a leave under FMLA instead of workers' comp coverage if your injuries qualify for workers' comp benefits.

A serious health condition is a mental or physical condition, an injury or illness that requires either inpatient care or continuing treatment by a medical practitioner. The treatment should last at least three consecutive days and requires more than two physician appointments within a given period. Injuries resulting in long-term illness and medical procedures like surgeries meet this definition.

It is legal for an employer to require you to take some time off work after a work-related accident. Under the law, your employee can count your time out on workers' comp as FMLA provided you are away from work for the reason that meets the Family and Medical Leave Act requirements.

However, your employer should ensure they are not allowing you to exhaust the benefits you may be entitled to under workers' comp laws.

If your employer defines workers' comp absenteeism as FMLA leave, then you can receive employment benefits accumulated before your leave commences. FMLA gives you a right to employment damages or employment position during your FMLA leave period other than the damages you are entitled had you not taken some time off.

Apart from group health benefits assured under the law, you may receive additional benefits depending on your company's policy for offering benefits when the staff is away on leave.

If you have been awarded workers' compensation damages, you should plan with your employer how to pay for your group health insurance benefits when concurrently taking unpaid leave. Make sure you plan with the company before the FMLA leave, or immediately your FMLA leave starts.

This is because the Family and Medical Liability Act provisions for compensation of the company's share of health coverage premiums don't apply. In short, FMLA only authorizes the recovery of the company's share of coverage premiums paid to retain insurance for the worker under a group health policy during the unpaid leave period. Leave taken following workers' compensation isn't unpaid leave according to FMLA.

Similarly, if you are receiving workers' comp benefits and concurrently taking an unpaid leave, you should make prior plans with your employer for non-health benefit premium payments.

There are numerous options for collecting premium payments under the law. One option could be paying your premium share through payroll deductions. You may also prefer to make one large payment by writing a check bimonthly. Make sure your employer agrees to your mode of payment.

Once you choose a payment method, make sure you follow it. If you fail to pay your premiums, your company could terminate your insurance while you're on leave.

Whether your company offers light-duty tasks as a way to keep you productive or reduce workers' comp cost, chances are you have many questions about how it affects your FMLA entitlement and workers' compensation benefits. Below are answers to most commonly asked questions:

1. Are You Required to Go Back to a Light Job that isn't the Job or a Corresponding Alternative to the Job You Left?

   If your treating doctor for workers' comp injuries certifies you can perform light duty work, you can decline your employer's offer for light duty if it's not the position or an equivalent to the position you left. However, this may result in losing temporary disability benefits in workers' comp coverage, but you have a right to remain on FMLA leave up to when the leave entitlement expires. Also, after losing the workers' compensation benefits, you can elect, or your boss may require you to use accumulated paid leave.

   If you accept the light duty job in place of leave or go back to work before your FMLA leave ends, you retain the entitlement to your previous or a correspondent job position. Nonetheless, the time you work in a light duty job can't count against your FMLA leave right.

   The restoration entitlement is allowed in suspension during the time you perform light duty tasks. It is limited and ceases after the applicable twelve-month FMLA leave. Restoration depends on your ability to execute essential duties of the same or equivalent job position after the FMLA leave.

2. What comes about to a Worker on Concurrent FMLA Leave and Workers' Compensation once the FMLA Leave Right Runs Out?

   If you are still performing light-duty tasks or not in a position to go back to work and your FMLA leave right runs out, you no longer have FMLA protections. Instead, you should check either workers' comp statute or the American with Disabilities Act (ADA) if you are an eligible person living with disabilities for further protection.

3. Should Your Employer Pay you the Same Amount of Wages when You are on a Light-duty Job?

   You should be paid the agreed-upon wages irrespective of the hours and days you work. However, your employer can change the salary amount depending on the expected future absences for temporary disability. The wages should meet the least requirement for the claimed exemption. However, provided the salary adjustment is made in advance depending on expected duty, it could be treated as a salary adjustment enacted after changes in the job description.

4. Are there Restrictions of the Number of Light-duty Hours or Days You Should Take?

   There is no limitation of the number of hours or days you should take on light duty. Usually, the light-duty job should be short-term as it is intended to keep you busy while recovering rather than collect workers' comp.

   There are cases where an injured employee will reach maximum medical improvement but can't go back to their previous position. In these cases, the employer should follow ADA provisions. This gives reasonable accommodations such as transfer to alternative available job positions. If you can't be accommodated or there are no other job positions available, termination could be appropriate.

5. Is it Mandatory for Your Employer to Offer You Overtime?

   No. Companies are not obliged to offer overtime opportunities to employees on light duty, even if the injured worker's regular job involves overtime.

You are entitled to information on the Family and Medical Liability Act. All covered companies should display FMLA posters from the US Department of Labor (DOL) with eligibility guidelines in conspicuous places. You are also entitled to take leave if you are eligible and work for an FMLA qualified company.

FMLA is federal employment law, and your employer can't retaliate against you for exercising your occupational rights. Below are perfect examples of illegal retaliation:

• Being demoted after requesting an FMLA leave

• Being subjected to discrimination or workplace bullying after returning from an FMLA leave

• Being denied your annual performance bonus despite delivering exceptional work

Only your attorney can tell whether your hostile workplace or wrongful termination claim meets the requirements to file a complaint. If the assertions qualify, your lawyer will work with you to file a complaint against the employer.

If you are retaliated against or fired because of filing a lawsuit against your employer, the company will be held accountable. As an employee with work-related injuries, you could receive workers' comp benefits alongside back pay, reinstatement of employment, lawyer's charges and compensation for termination losses like the cost of searching for a new job.

It is worth noting that an FMLA and workers' compensation lawsuit does not protect you entirely. Just because you brought a claim does not mean you can't be disciplined or fired for reasons unrelated to your injury, company downsizing or being unable to deliver.

• "Playing the Tough Girl or Guy"

  When you visit a doctor after an accident, you should be honest about the extent and nature of the injuries and pain you're experiencing. Let your doctor understand how badly you are injured, where you were injured, and how you were injured.

  If you fail to tell the treating physician exactly how you are feeling, your medical records will not record your injuries. In return, your employer may use these records to prove that your injuries were less severe.

• Returning to Work Immediately

  Most employees want to start being productive again as well as move their careers forward as soon as possible. However, going back to work before you're fully healed has a negative impact on your workers' comp claim. Unscrupulous employers may use your return to work as proof that you have recovered from the work-related injury and you can perform a full-time job.

• Not Getting Help Early Enough

  You can do much damage to your claim without knowing it, particularly if you wait until you get a string of adverse orders before consulting a lawyer. A qualified lawyer will fix most of the problems that were mismanaged but not all. Also, there are lawyers who could refuse to accept cases issued with adverse orders.

If your employer denies your right to take some time off and enjoy workers' compensation benefits, it makes sense to consult a qualified attorney. The attorney will help you assert your rights as well as negotiate the amount of leave you need. Moreover, if your company does not meet its legal responsibilities, your lawyer should evaluate your options and develop the best strategy. The strategy could involve settling your claim or bringing a lawsuit in court.

If you are undergoing any unfair treatment or have been fired after filing an FMLA or workers' compensation claim, then you need to pursue legal action. Your case is significant to us at The Workers Compensation Attorney Group in Long Beach because it goes against your rights as a worker. We understand how essential it is to get answers to your concerns and questions. Therefore, we are committed to help you through the process and get the justice you deserve. Call Long Beach Workers Compensation Attorney today at 714-716-5933 and let us put our knowledge to use to make sure your employment rights are protected.