Employers that run federal Family and Medical Leave Act benefits at the same time as workers’ comp benefits give themselves more leeway when employees are off work for workplace injuries for an extended period of time, a state supreme court has ruled.
In the case of Kings Aire Inc. vs. Jorge Melendez, the Texas Supreme Court ruled that an employer who laid an employee off who had been out on workers’ comp concurrently with FMLA, but had exceeded the 12 weeks away that is allowed by the law, was entitled to do so.
But regardless of the outcome of this case, employers need to be careful about terminating any workers that are out on workers’ comp.
Here are the facts of the case:
Jorge Melendez filed a workers’ comp claim after he injured his wrist in July 2009, cutting two tendons and the median nerve.
His employer informed him that while he was out on workers’ comp, it would concurrently place him on FMLA leave, which allows eligible employees who cannot perform their jobs due to a serious health condition, to take up to 12 weeks of job-protected leave per year.
After 12 weeks, Melendez was unable to return to work and his employer sent him a termination letter. He later sued, accusing the heating and air company of retaliating against him for filing the workers’ comp claim.
A local court and appeals court sided with Melendez, but the Texas Supreme Court reversed those decisions, saying that the evidence did not support the allegation that he had been fired for the workers’ comp claim. Instead, the employer had rightfully signed him up for FMLA leave and he was fired under the company’s policy, which the employer had enforced equally in four other circumstances before Melendez’s termination.
If you foresee an employee missing a long period from work, it is not a bad idea for you to also put them out on FMLA leave to protect your interests, employment law attorneys say. And regardless, employers that fail to provide FMLA protections risk running afoul of the law.
If you do not offer FMLA leave while they are out on workers’ comp, your employee will still have those 12 weeks to use for other potential FMLA-approved leaves.
The two laws have some intersections, as well. For example, where provisions of both laws are running concurrently, an employee may turn down light duty under workers’ compensation.
If that happens, the employee may lose benefits under workers’ compensation, but would retain FMLA rights to a continuation of job-protected leave.
If an employee returns to work in a light-duty capacity under workers’ compensation, employers typically may pay a lower wage than that of the worker’s normal position.
Under the FMLA, if an employee is transferred to an alternate position which better accommodates recurring periods of leave than does their regular position, such a position must have equivalent pay and benefits. However, light duty is generally not an alternative position.
Note of caution
But be aware of the following issues. According to the Department of Labor:
• If an employee is collecting workers’ compensation in relation to something which is also a serious health condition under the FMLA, the employer cannot require the employee to substitute any paid vacation, personal, or medical or sick leave, for any part of the absence that is covered by the payments under workers’ comp.
• Similarly, an employee is precluded from relying upon FMLA’s substitution provision to insist upon receiving workers’ compensation and accrued paid leave benefits during such an absence. However, the employer and employee may be able to agree to paid leave to supplement the workers’ compensation replacement income.