Workers Compensation and FMLA

If you’ve been injured at the workplace, there are several ways for you to handle the situation to protect yourself from losing your job. Workers’ compensation is one direction, and the Family Medical and Leave Act (FMLA) is another. Deciding which works best for you means you need an understanding of both programs so you know which plan will work in your best interest.

One fact to keep in mind when deciding on the right program is your employer can ask you to use FMLA if you qualify for workers’ comp claim. Your employer can legally ask you to use FMLA to take time off from your work duties when you’ve been injured on the job. They must; however, do all they can to make sure you are not exhausting benefits you may be eligible for under the workers’ compensation laws. According to the Department of Labor, there are cases where it is possible to take time off under FMLA and workers comp.

If your time off work qualifies for both FMLA and workers comp, your employer is required to provide your leave under whichever law will give you the best benefits and rights. They cannot require you to take time off under FMLA rather than workers comp if your injury makes you eligible for benefits under workers compensation.

Another fact to remember or be aware of is workers’ compensation leave can be counted against your FMLA leave entitlement. Workers compensation and FMLA leave can run concurrently if the reason you require time off work is a qualifying illness or injury and your employer notifies you properly in writing that the leave time is going to be counted as FMLA leave.

You may want to receive benefits under workers’ compensation; however, your employer may want you to use FMLA. The reason for this is money. If you are taking a basic FMLA leave, your employer does not have to pay your wages while you are healing, they will only be required to allow you to keep your benefits, such as your health care.

If you file a workers’ compensation claim, your employer’s insurance which they purchased to cover on-the-job injuries will be used to pay your expenses. This means their insurance premiums may increase in the future due to your injury claim. For this possible increase in workers’ compensation insurance premiums steers employers to encourage employees to take time off under the FMLA rather than filing a workers’ comp claim.

In California, employers are required to comply with the FMLA laws if they have at least 50 employees for at least twenty weeks within a year. The employees are eligible for this benefit if they:

• Have worked for the business for a least a year

• Have worked a minimum of 1,250 in the past year

• Have worked at a business with at least 50 employees. These employees can be spread out in locations as long as they are within a 75-mile radius of each other.

FMLA the Family Medical Leave Act is a federal law providing you, as a worker, time to take care of serious health conditions. These health conditions must be affecting your ability to perform your work duties. This leave time not only covers your needs, as the employee, to take care of your health needs, it also allows for you to care for immediate members of your family. The act does not pay you for your time away from the job, but it provides you with security in keeping your job, as your employer cannot fire you while on FMLA.

The FMLA leave applies to all public employers and private businesses with fifty or more employees. The act was designed as a protection for an employee’s job and provides eligible employees unpaid leave time for up to twelve workweeks within a year. The circumstances this act applies for is:

• If you have a serious health condition and need time away from work to heal

• If you have given birth, or need to care for a newborn, a newly adopted child or foster care placement

A new law, the New Parent Leave Act was put into place in January 2018 and allows employees of smaller businesses bonding leave rights. This act allows employees working in companies with 20 to 49 employees up to twelve weeks of leave time to bond with a new child.

Reasons for taking time off of work under FMLA can vary, and it is essential you check whether your reason will qualify or not. If you take time off and it is not an allowable event within the policies, you risk losing your job.

Summary and descriptions of acceptable reasons

• Having a child qualifies under FMLA leave, and as a mother, you can use this time off for prenatal care or the continuing care after your baby is born. A father can also use FMLA leave to care for an infant or provide care if their spouse is incapacitated due to the pregnancy.

• You do not have to use parental leave concurrently. Parents can choose, if their employer agrees, to spread the allowed twelve weeks leave time over a year by using a few weeks at a time. They can also ask their employer to enable them to work reduced hours in their work week, which is referred to as ‘intermittent parental leave.’ The exception to the two-parent leave occurs if both parents are working for the same company. In this event, only one parent would be allowed child-birth leave.

• There are times a pregnancy itself qualifies under FMLA due to serious health conditions. If you are placed on bed rest by your doctor’s request, you can take an FMLA leave.

• Adopting a child or fostering a child is also a qualifying reason for FMLA leave. You are allowed up to twelve weeks of leave time in one year after the placement of a foster child or adopted child. If you need time before the actual placement or adoption of a child, you can request leave time to attend counseling sessions, appear in court, or travel to another country to complete the adoption.

• Medical leave is also allowed for employees you must leave to care for a family member with a serious health condition. FMLA laws state employees may take leave to care for their spouse, children, or parents. This leave does not cover in-law relatives.

• Medical leave is also allowed for your health reasons. If you develop an illness that qualifies a serious health condition under FMLA regulations, you are allowed to take FMLA leave from work.

If you are looking at time off for a work-related injury, you should know both the state and federal FMLA specify that either you or your employer can choose to have your FMLA leave run together with your workers’ compensation absence if your injury meets the ‘serious health condition’ of FMLA 27 CFR 825.207. These criteria basically say if an injury that is serious enough to keep you out of work on a workers’ comp claim will then qualify as a ‘serious health condition.’

A serious health condition under these acts is defined as an injury, physical or mental condition, illness, or impairment involving continuing health treatments by a healthcare provider. These treatments can require a hospital, inpatient care, or treatments in other healthcare facilities.

Officials at Workers’ Compensation Commission often tell workers there are advantages of concurrently being on family and medical leave such as being able to maintain their health benefits. When you are out of work on FMLA, your employer has to keep you covered under any company-provided health insurance plan. Other advantages include not only keeping your job position open; your employer cannot force you to return to ‘light duty.’ There are stipulations concerning the returning to work under the workers’ compensation system with restrictions your employer must follow.

While out on FMLA leave one of the requirements of the act is to guarantee job protection. When you deemed medically able to return to the workplace, your employer must return you to the position you had before the leave or an equivalent one upon your return. This equivalent would mean you are entitled to the same employment terms, including pay increase, shift, and location as you would have earned or had before you left.

The FMLA act does not protect you from the elimination of a shift or overtime hours. It will also not protect you from other non-discriminatory actions taken by your employer such as ending all night shifts. If it is a company decision to stop night shift positions while you are out on leave and this falls under non-discriminatory, just a business decision, you are not guaranteed the right to return to work. This factor pertains to any other type of action that would have occurred while you were working and had not been out on leave.

If you injure yourself while on the job in California; you are eligible for workers’ compensation benefits.

These benefits include:

• Temporary disability- This benefit pays two-thirds of your average weekly income up to two years, depending on when your injury happened and up to statutory maximums. This benefit is to compensate you while you are unable to work due to being under active medical treatments for an on-the-job injury.

• Return to work fund- There are restrictions for this benefit. Restrictions include the date of the injury and can be used to pay past-due bills you may have and help in repaying loans, and other financial difficulties you may be experiencing.

• Medical care- This benefit pays for your medical treatments needed to treat or relieve the effects of your work-related injury or illness.

• Supplemental job displacement voucher- This benefit is available if you are not offered a job by your employer when you are healthy enough to return to work. You can use this benefit for computer equipment, payment of licensing, training, testing or certification fees.

• Permanent disability- This benefit compensates you on a percentage of loss of your body’s function as a result of your injury. The percentage is from one to ninety-nine.

• Death benefits- This benefit will be paid to your dependents if the injury results in your death.

When you can return to your job will depend on your level of recovery, the date your injury happened, and whether or not your employer can accommodate work restrictions if your doctor places them on you.

The rules of FMLA in California state that businesses in the private sector do not have to provide FMLA benefits if they have fewer than 50 employees. If you would otherwise qualify for FMLA, you can be denied if your employer is not obligated to provide the benefit.

Other reasons for denial of FMLA could be you do not meet eligibility requirements. You must have worked at least one year with at least 1,250 hours of work time within the last year. Another condition is that there must also be 50 employees working for your employer.

While FMLA will cover your time away for the birth or a new child, adoption placement, to care for a parent or spouse with serious medical issues or if you are unable to work due to a serious health-related issue, other life circumstances do not qualify. These other circumstances can be considered serious, but still would not qualify you for FMLA leave. Some employers will offer options for other personal or family crises.

Another reason you can be denied FMLA leave is if your health condition is deemed as ‘not a serious medical condition.’ To qualify for this type of leave, you have to suffer some form of incapacitation along with meeting other requirements. Simply having a mental or physical ailment may not be serious enough for qualification. You may be asked for a certificate from your doctor, proving your medical condition and its severity. You are given 15 calendar days from the day you file to provide the medical verification if requested.

The U. S. Department of Labor Wage and Hour Division, states it is illegal for an employer to retaliate against an employee who takes leave under FMLA. The act was put into place to protect employees from losing their job as well as discriminating against them when using the FMLA leave program. The law also states it is illegal for an employer to take action against an employee who complains about their administration of the law.

If an employee complains about a lawsuit related to FMLA denial, a lawsuit related to FMLA, testifies against their employer in proceedings related to FMLA rights, or provides information regarding a lawsuit or claim, their employer cannot take retaliation against them. If you've been treated unfairly, contact a worker’s compensation attorney. You have the right to file suit if you believe you have been retaliated against or discriminated in any manner regarding the denial of leave.

• Examples of FMLA lawsuits:

  In Illinois, an employee claimed he had been forced to pick between keeping his job and caring for his ill parents. He stated he was fired for choosing to care for his parents. When filed with the federal courts, they found the company he worked for was guilty of an intentionally violating his FMLA rights. The courts granted him more over ten million in punitive damages and seven -thousand five-hundred in compensatory damages because he was determined his employer took retaliation against him.

  In Minnesota, a nurse filed a lawsuit claiming her FMLA rights were violated. Her employer claimed she had quit her job the day before she asked for FMLA leave. The nurse stated she had not quit her job; she had left early the day in question after a dispute with her job assignments. Her denial of leave request appeal was overturned with the 8th District Circuit Court of Appeals, and the case moved forward.

Challenging an employer with retaliation or discrimination is a difficult process. If you feel you've been treated unfairly by your employer, contact a worker’s compensation attorney we can help you protect your rights and benefits.

The State of California protects workers who are injured while performing their work duties under the Workers Comp program, but the insurance companies hired by your employer often deny the claims submitted for these injuries. It is your right to appeal if you have been denied benefits you’re entitled to under the state law.

You could lose your benefit rights for workers’ comp if you don’t’ report your injury within thirty days to your employer. The injury date would be the day of the accident unless it is the case of illness type injury that takes time to show signs. Some injuries occur from repetitive motion and therefore would not have a specific day of occurrence, but these claims must be filed within 30 days after your physician diagnosis the condition as ‘work-related.’

There are also times a benefit is denied because the insurance company feels the injury did not occur on the work site. Your illness or injury, under California law, has to arise out of and in the course of the employment. This dual requirement is often a reason for an insurance company to deny a worker’s comp claim.

Being denied a worker’s comp claim does mean you should give up. You need legal counsel to help you dispute this decision and file an appeal. Contact the Workers Compensation Attorney Law Firm to find out how to file an appeal and receive the benefits you need and deserve.

Employees in California have the right to workers’ compensation benefits. If you've been hurt performing your work duties, whether it is your fault or not, you are guaranteed compensation for your injuries. Even if your employer feels the injury is frivolous, they cannot respond with negatives actions towards you.

Negative or retaliation is any action your employer takes against you because you have filed a workers’ compensation claim. The California Labor Code Section 132a protects you from unlawful retaliation against any employee who has filed or is declaring to file a workers’ comp claim.

Some forms of retaliation used include:

• Firing you before you have the opportunity to file the claim

• Reducing your pay that is not in accordance with the workers’ compensation laws

• Cutting your hours if you are an hourly employee

• Putting negative information in your employee review

• Purposefully demoting or transferring you just because of your injury even though you will be able to return to the job

• Firing you after you’ve filed a claim

• Used a form of disciplinary action because you’ve filed a claim

• Used threatening or intimidating actions or words towards you because you’ve filed a claim

You will need more than a bad feeling that you are being treated unfairly. If you have any documentation, it will be needed to support your claim, and any letters or emails you’ve received that reflect this behavior. If you received verbal statements, you should contact any other employees who may have witnessed the events. Contact the Workers’ Compensation Attorney Law Firm for help with a possible lawsuit for these actions.

The State of California considers workers’ compensation retaliation a misdemeanor and proving you are a victim of this form of action could increase your benefits by as much as $10,000. You are required to file a complaint with the Division of Workers’ Compensation within one year after the retaliation actions began or occurred.

If you have been denied leave under FMLA or Workers’ Compensation, contact the our workers compensation attorney in Los Angeles at 310-956-4277. Work with an attorney who has the understanding and experience working with employers, insurance companies, and the courts to get you the benefits you deserve.