Do you know about - family medical Leave Act - Fmla and Workers' payment Maze - An owner Fmla Guide
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1. How are leaves covered under the Fmla and workers' compensation statutes and how much time off is required?
2. When is a Wc injury covered under the Fmla?
3. Should Wc leaves be treated separately from other types of leaves?
4. Should the owner give the worker any extra declaration under the Fmla?
5. Does an owner have to pay for condition assurance for an worker on Wc leave?
6. Can an worker on Wc leave be required to use vacation or sicK leave?
7. If the worker is released to light duty, can he be required to return to work?
8. Does the owner have to reinstate an worker returning from a Wc leave?
9. Prevent Legal Headaches: Count Wc Leave as Fmla
Implementing the Fmla can be tricky, especially when a leave of absence involves workers' compensation injuries. This article answers some of the most base questions with regard to workers' compensation and the Fmla.
The house and medical Leave Act (Fmla) statute does not consist of any direct reference to workers' compensation injuries, and employers did not receive specific advice on the topic until the April 1995 final regulations. However, since most workers' compensation leaves are covered under the Fmla, an employer's failure to treat these leaves as Fmla leaves can lead to inadvertent violations of the statute's requirements. To help navigate the involved legal maze of the Fmla and workers' compensation, the Editors have identified eight frequently asked questions on this topic. The answers are based on analyses of the Fmla, its regulations, court cases, group of Labor Wage and Hour conception letters, and discussions with Hr and legal experts.
1. How are leaves covered under the Fmla and workers' compensation statutes and how much time off is required?
The Fmla is a mandatory federal leave law intended to protect employees who need to take time away from work to attend to distinct house and medical problems. It applies to employers with 50 or more employees and all public agencies and schools and allows an eligible worker to take up to 12 weeks of job-protected leave for varied house and medical reasons, along with medical leave when the worker is unable to work because of a "serious condition condition."
Workers' compensation ("Wc") statutes are primarily state liability and wage continuation laws that protect employees who are injured while working. Almost every state has a law that guarantees an wage (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 consist of medical treatment, rehabilitation, disability, and wage continuation. Wc statutes ordinarily are not leave laws, however. Most states do not need employers to give a specific whole of leave for workers' compensation, and only a few states need reinstatement from Wc leave.
2. When is a Wc injury covered under the Fmla?
If the worker is eligible for leave under the Fmla and the injury is determined a "serious condition condition," the Wc leave should be treated under the Fmla. The Fmla defines serious condition condition broadly to consist of any "illness, injury, impairment, or corporal or mental condition that involves" either sick person care or continuing treatment by a condition care provider. The statute does not distinguish between work-related and nonwork-related injuries. Thus, any on-the-job injury that requires an worker to take leave to seek sick person care or continuing treatment likely will be covered by the Fmla.
Accordingly, whenever an worker is injured on the job and needs time off to recover, the owner immediately should decide if the worker also is eligible for leave under the Fmla. If the worker is eligible for Fmla leave, the owner should acquaint the worker 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 owner does not run the Wc leave concurrently with the Fmla leave, the worker may still have the full 12-week Fmla entitlement available to use after the Wc leave.
3. Should Wc leaves be treated separately from other types of leaves?
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 detach kind of leave may cause employers to inadvertently neglect the requirements of the Fmla.
4. Should the owner give the worker any extra declaration under the Fmla?
In order to deduct the time spent on Wc leave from an employee's yearly Fmla leave entitlement, the owner must acquaint the worker in writing that the Wc leave is designated as Fmla leave and will count against, and run concurrently with, the employee's 12-week entitlement. The consideration to the worker must detail the specific obligations of the worker while on Fmla leave and construe the consequences of a failure to meet these obligations. Most employers use the group of Labor's Form Wh-381 to comply with these consideration requirements. If the owner does not provide the notice, it cannot count the Wc leave towards the 12-week Fmla entitlement. Therefore, the worker may be entitled to an additional 12 weeks of Fmla leave at a later date.
If the worker has been on Wc leave without being located specifically on Fmla leave, the owner should send consideration to the worker immediately so that the Fmla clock starts running. However, the owner may then only prescribe the leave from the date written consideration to the worker is provided. It cannot retroactively prescribe the time spent on Wc leave against the Fmla entitlement.
5. Does an owner have to pay for condition assurance for an worker on Wc leave?
If the worker qualifies for Fmla leave and the owner usually pays for condition insurance, the answer is yes. Although most state Wc laws do not need employers to pay for condition assurance while a Wc leave, the Fmla requires the continuation of condition assurance benefits while an Fmla leave. Typically, the state Wc laws cover the employee's medical costs linked to the work injury but do not mandate prolonged coverage under, or cost for, a condition assurance plan. However, under the Fmla, employers must provide the same condition benefits while an eligible employee's Fmla leave that it would have provided if the worker worked throughout the leave. Thus, if the owner usually pays 80% of an employee's condition benefits premium, it must continue to do so while the employee's Fmla/Wc leave.
6. Can an worker on Wc leave be required to use vacation or sick leave?
The Fmla allows employers to need employees, or employees to elect, to substitute accrued vacation, sick, or other paid leave for all or part of the 12 weeks of unpaid leave. Employees on Wc leave typically receive up to two-thirds of their general pay as a wage benefit under state law. In recognition of this benefit, the Fmla regulations do not allow the use of paid leave if the worker is receiving workers' compensation, even to make the worker "whole" or if requested by the employee. However, the owner may prescribe the leave as Fmla leave and count it against the employee's 12-week Fmla entitlement.
7. If the worker is released to light duty, can he be required to return to work?
Most light duty positions do not consist of the employee's general job functions. Therefore, if the worker 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 worker to take the light duty assignment to continue receiving wage benefits, the employee's Wc benefits may be discontinued. The worker then must be allowed to use any accrued paid leave while the remaining unpaid Fmla leave.
8. Does the owner have to reinstate an worker returning from a Wc leave?
If the worker is covered under the Fmla, he must be reinstated to the same or an equivalent position. The worker must be reinstated even if the owner did not acquaint the worker of coverage under the Fmla. If the worker does not return to work at the end of the 12-week Fmla leave, the owner may quit the worker 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 worker must have been properly located 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, need reinstatement regardless of the length of the Wc leave. As a additional complication, the worker may be determined disabled under the Americans with Disabilities Act and, therefore, may be entitled to additional leave as an accommodation.
9. Prevent Legal Headaches: Count Wc Leave as Fmla
Since most workers' compensation leaves typically will be covered under the Fmla, employers should be ready to comply with both laws. Failure to categorize a Wc leave as a Fmla leave ordinarily will not harm the worker as long as he gets all of the benefits of Fmla leave, such as prolonged condition assurance and reinstatement rights. However, the owner may lose the opening to count the time on Wc leave against the employee's Fmla entitlement and may enlarge unnecessarily the employee's Fmla leave eligibility. In addition, employers may violate the Fmla if they do not reinstate an worker from a Wc leave that was not properly designated as Fmla leave.
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