FMLA and WC

[beckham]

My employers are wanting to put me on FMLA while out on workers comp. Is there anything I should be looking out for? Is this in my best interest or theirs?
The fact that they are so eager to get me on it makes me scratch my head.

[.SH]

it's the law.
they can't terminate you until 12 weeks from the time your out. sounds like they are anxious for the clock to start.

[BeachGirl]

A good decent employer doesn't put their IW on FMLA. They do whatever they have to do keep the job available for the IW to return to when they are able to do so. An employer looking for an easy way to cut the IW loose after 12 weeks is a slime ball employer that uses the FMLA law to get rid of the IW within 12 weeks.

Like sh says sounds like your employer is anxious to see you gone. I'd start networking to find a new position asap.

beachgirl

[BvIA]

FMLA/WC/ADA/EEOC rules can be confusing where there is potential for overlap.

While the ER is permitted to run the WC leave concurrently with FMLA, you must have written notification of your eligiblity... FMLA provides job protection for up to 12 weeks/ per annum. Though don't know what the 'annum' dates are... based on your hire date no doubt.

Under FMLA, the ER is required to return you to your job, and continue any ER provided benefits, including health care, and pay those premiums during the FMLA qualifying leave.

Depending on your qulifying dates of service, you could conceivable have 24 weeks of FMLA in the year. Not a bad benefit for EE/IW's.

2. When is a WC injury covered under the FMLA?

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.

Accordingly, whenever an employee is injured on the job and needs time off to recover, the employer immediately should determine if the employee also is eligible for leave under the FMLA. If the employee is eligible for FMLA leave, the employer should notify the employee in writing that the leave is covered under the FMLA so that the leave time may be counted against the employee’s 12-week FMLA entitlement. If the employer does not run the WC leave concurrently with the FMLA leave, the employee may still have the full 12-week FMLA entitlement available to use after the WC leave.

While the above information is for ER's, it gives an idea for EE/IW on what the ER's are required to do. http://www.ppspublishers.com/article...r%20the%20FMLA

[beckham]

Thanks.

I tend to think they are not slimeballing me, but covering their own butts.
However, I have been out for nearly 3 weeks now and just yesterday I had the meeting with my boss who handed me the FMLA papers. In it, it said that "I" had requested to use the FMLA on my last day worked. Therefor the clock has been ticking. I am wondering how hard I should push the fact that the law states it can only start once the paperwork is done?

The pinch is: if they are trying to help me and secure my job by getting me on the FMLA, am I stirring things up by fighting over 3 weeks? Or should my argument be that I don't feel right going against what the law dictates?

[.SH]

there is no law against retroactive start date.

[BvIA]

there is no law against retroactive start date.

wanna post the link you base that on ? It's easy enough to make the statement... show us please.
FMLA can't start until the EE is notified in writing of the eligibility of leave.
Further more, the doctor has to certify the medical necessity of FMLA leave to the ER...not the CA/IC. There are overlaps in FMLA/WC/ADA.... check the link I provided and you'll get a better understanding of what the benefits offer.

[beckham]

I remember distinctly reading that it cannot start until the employee has been notified in writing--which for me was 2.5 weeks after my last day worked. And that it cannot be retro-dated.

I'm no lawyer so there could be ways around this I suppose. That's how I read it at least.

[.SH]

http://suitsintheworkplace.com/blogs...04/29/847.aspx
I believe in this particular case the employee never filed or applied for FMLA personally
this was done by the employer as the absenteeism accrured. under the ragsdale decision(below) the employer should notify the employee otherwise there might be some employer liability if the employee can demonstrate harm.

i don't have the specific cites but there are a number of other cases with similar fact patterns that indicate that it's at the employers discretion whether they want FMLA protections to run concurrently with work comp disability.
Employers can choose to keep an "abandoned" job open for an employee for longer but probably not for less then 12 weeks.

"following the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., which invalidated a penalty provision of the regulations. Ragsdale ruled that the current regulation’s “categorical” penalty for failure to appropriately designate FMLA leave, which in that case would have required the employer to provide an additional 12 weeks of FMLA-protected leave after the 30 weeks of leave the employee had already received, was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and contrary to the statute’s remedial requirement that an employee demonstrate individual harm. Several other courts have also invalidated similar categorical penalties in other notice provisions of the current regulations. The final rule therefore removes these categorical penalty provisions and clarifies that where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable."

the rules were clarified in 2008 for these and other issues
http://www.dol.gov/esa/whd/fmla/finalrule/factsheet.pdf

[BvIA]

The point of FMLA running concurrently with WC leave is that the ER notify the EE/IW that this IS happening...In the case SH provided this IS the case...

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.

The court ruled in the ER favor, because...

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

The rules are that the ER MAY run FMLA with WC leave if they wish... AFTER notification to the EE/IW of the action.

The FMLA leave cannot be run retroactive to the notice by the ER.