Rod Satterwhite and David Greenspan are members of the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.
posted on Tuesday, April 29, 2008 10:50 AM by Lou Michels

Workers' Compensation Absence Does Not Equal FMLA Protection

     A recent case out of the 7th Circuit clarifies the confusing interplay between workers' compensation leave and leave covered by the FMLA. 

     The employee in this case suffered the all-too-common back injury and was out of work from January 19, 2004, through August, when he was released to return to work.  The company's absenteeism policy tracked the minimum amount of leave required under the FMLA.  Specifically, the employee was allowed 480 hours of time away under the company's handbook.  The company was careful to note in its handbook that FMLA time runs concurrent with any short-term disability or workers' compensation covered absences.  The company automatically terminated anyone who was unable to work for a total of more than 12 weeks, regardless of the reason for the absence. 

     Important safety tip here -- such a policy may run afoul of the Americans with Disabilities Act, unless the company is conducting a case-by-case review of the employee's status and job requirements at the 12-week point. 

     The company scrupulously followed the FMLA notice requirements when the employee went out as a result of the injury, telling the employee how much FMLA leave he had left and that the leave would run concurrently with worker's compensation and short-term disability.  In this case, the employee had already used more than half of his 480 hours, and the company terminated him at the end of his FMLA entitlement due to excessive absenteeism. 

     The employee sued for exercising his workers' compensation rights, wrongfully requiring him to utilize FMLA leave, rather than temporary total disability time, and terminating him after he attempted to return to work with restrictions in a light-duty position. 

     Both the district court and the court of appeals rejected all of the employee's claims.  The court of appeals first noted that the plaintiff could not establish that the employers' reason for terminating him -- excessive absenteeism -- was a pretext for covering up improper motivation.  The court held that an employer may fire an employee for excessive absenteeism even if the absenteeism is caused by a compensable injury under the workers' compensation system.  The court also noted that the employer had every right, under the law, to place plaintiff on FMLA leave even if the employee did not want to use his FMLA entitlement.  The court noted that the employer in this case had provided the employee with appropriate notice of his FMLA status and the fact that it intended to run FMLA leave concurrently with either workers' compensation or some other type of paid leave of absence.

     This is a reasonably clear-cut win for a company that shows the benefits of complying with the FMLA notice requirements for concurrent running of leave of absence and FMLA time off.  Under these circumstances, the employer is covered and can actually run a manageable workers' compensation and FMLA leave of absence policy.

Comments

# re: Workers' Compensation Absence Does Not Equal FMLA Protection

Tuesday, September 23, 2008 4:07 PM by Mark Klingman
WC requires protection, like any other qualifying event, if their is FMLA leave time available. If you have no time left, you get no leave.

I have a question regarding running benefits concurrently though. Is there a way to not allow employees to "double dip" in Short Term Disability and Worker's Compensation? I always thought STD means outside of work and WC meant inside of work injuries and illnesses (so-to-speak)?

# re: Workers' Compensation Absence Does Not Equal FMLA Protection

Wednesday, September 24, 2008 9:32 AM by Lou Michels
Mark--typically an employee is restricted to one form of disability compensation or the other--every insurance program I am aware of requires either a set-off against money from another source that is related to the injury (for example, the WC carrier retains a right to get back its paid benefits if the employee successfully sues for her injury) or requires the employee to identify other sources of income so that the employee does not get a double recovery for the same injury. You are correct that WC recovery arises exclusively out of a workplace accident, but STD coverage can occur for both (for example, an injury that occurs at work but that does not arise out of the work being done, e.g. breaking an ankle by stepping off a curb in the company parking lot). But double recovery, where an employee is drawing both STD and WC is always prohibited by the insurance policies themselves, in my experience. Anybody else have a different take on this?

# re: Workers' Compensation Absence Does Not Equal FMLA Protection

Monday, October 06, 2008 3:14 PM by Mark Klingman
That is my understanding as well. The stepping off a curb injury is a good example that does not constitute as a work related incident, so STD would apply. I heard from an outside source that an employee was getting benefits from both WC and STD and I told them that they should have a check and balance internally to prevent this because I've never heard this before.

Thank you for the insight.