In NY, should you request to use FMLA while on Workers Compensation?

[edmondo93]

If an employee was hurt on the job and is receiving workers compensation in the State of NY, should that employee also ask to also be put on FMLA? A lawyer suggested that the employee needs to ask to be put on FMLA as well, in order to be protected from being fired while out on workers comp. When I looked up info on FMLA, it's very confusing. Some say that if you are eligible for FMLA and are on workers comp, that the employer needs to treat the employee under the FMLA. But when the employee called and asked for this, the employers HR rep to him that he cannot be fired while on WC, that it was the law. He just wanted to be protected to make sure he's not fired. He works for a very large company. Anyone know this? Thanks.

[wynn]

your lawyer is correct, there is no law in any state that says you can not be fired while on workers comp, it does not matter if you are paid or not heed his advice.

[felabeorbt]

your lawyer is correct, there is no law in any state that says you can not be fired while on workers comp, it does not matter if you are paid or not heed his advice.

Nope, you can't be on workers comp and be on an FMLA

Why would you want to be? You get paid for workers comp and are not really even considered absent from work

FMLA is a non paid leave where you only keep your insurance in effect

You need to be talking to a lawyer that deals in labor laws because the information you got is wrong

[ji]

?? That makes no sense. A employee cannot be fired while on worker's compensation (although he can be laid off if other employees are treated the same).

It makes no sense to use FMLA, which provides time limited unpaid leave, when he is already off work legally and cannot be fired.

He needs a much smarter lawyer.

[sherborne16]

The lawyer is correct... Reason is because, while you cannot be fired for being on WC, WC does not protect everything.

The FMLA is a mandatory federal leave law intended to protect employees who need to take time away from work to attend to certain family and medical problems. It applies to employers with 50 or more employees and all public agencies and schools and allows an eligible employee to take up to 12 weeks of job-protected leave for various family and medical reasons, including medical leave when the employee is unable to work because of a "serious health condition."

Workers' compensation ("WC") statutes are primarily state liability and income continuation laws that protect employees who are injured while working. Almost every state has a law that guarantees an income (funded by employers and the state) to employees injured on the job and at the same time places limits on the employer's responsibility for the injury. Benefits vary from state to state but typically include medical treatment, rehabilitation, disability, and wage continuation. WC statutes generally are not leave laws, however. Most states do not require employers to give a specific amount of leave for workers' compensation, and only a few states require reinstatement from WC leave.

If the employee is eligible for leave under the FMLA and the injury is considered a "serious health condition," the WC leave should be treated under the FMLA. 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.

Some experts suggest that WC leaves be treated separately from all other types of leaves to ensure compliance with the requirements of state workers' compensation laws. However, treating workers' compensation as a totally separate category of leave may cause employers to inadvertently neglect the requirements of the FMLA.

If the employee qualifies for FMLA leave and the employer normally pays for health insurance, the answer is yes. Although most state WC laws do not require employers to pay for health insurance during a WC leave, the FMLA requires the continuation of health insurance benefits during an FMLA leave. Typically, the state WC laws cover the employee's medical costs related to the work injury but do not mandate continued coverage under, or payment for, a health insurance plan. However, under the FMLA, employers must provide the same health benefits during an eligible employee's FMLA leave that it would have provided if the employee worked throughout the leave. Thus, if the employer normally pays 80% of an employee's health benefits premium, it must continue to do so during the employee's FMLA/WC leave.

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. However, if the state workers' compensation statute requires the employee to take the light duty assignment to continue receiving wage benefits, the employee's WC 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 the employer did not notify the employee of coverage under the FMLA. If the employee does not return to work at the end of the 12-week FMLA leave, the employer may terminate the employee without violating the FMLA as long as the termination is consistent with the treatment of similarly-situated employees who have taken FMLA leave. However, the employee must have been properly placed on FMLA leave and notified that the time off for WC leave ran concurrently with the FMLA. In addition, a few state WC laws, such as Oregon, require reinstatement regardless of the length of the WC leave. As a further complication, the employee may be considered disabled under the Americans with Disabilities Act and, therefore, may be entitled to additional leave as an accommodation.