FMLA and Work Injuries – Today we will discuss the interaction between Workers’ Compensation, a State Law, and the Family Medical Leave Act (FMLA), a Federal Law. When you are off work due to a Colorado work injury you have a right to lost wage benefits but what about your job? Is it protected? Can you be fired? Can your employer hire someone else? That’s where the FMLA and work injuries come in!
FMLA and Work Injuries
Let’s talk about the FMLA and workers’ compensation
We’re going to be covering what the FMLA and workers’ compensation really mean. So what happens if you’re losing hours from work because of your injury, and suddenly your employer is starting to talk about the Family Medical Leave Act (FMLA)? Maybe they’re requiring you to take workers’ compensation, maybe they’re saying it’s about to run out, maybe they’re telling you you have to apply for it, but what does any of that mean? Let’s dig in a little further.
How is workers’ compensation different from the FMLA?
So what is FMLA? And what does it mean to be off work when you’re on workers’ compensation, and how do they interplay with each other? And with that, let’s start breaking down what workers’ compensation is. So, it comes down to losing time from work, (losing pay) because of a work injury. Either because your restrictions don’t allow you to work or you are able to work within your restrictions but in order to attend medical appointments or therapy, you must leave work and consequently, lose wages.
Colorado’s workers’ compensation laws say that if you have restrictions that cause you to lose wages, and that includes medical appointments where you have to be off work, you get two-thirds of your lost wages paid to you once you have lost three shifts entirely. In Colorado, this payback is mostly unlimited.
What does the FMLA cover?
Moving on to our next definition, FMLA, the Family Medical Leave Act, is a different, federal law. Not everyone is covered under this law for a few reasons. If your employer has 50 or more employees in a certain geographic area, then they are required to follow the FMLA rules. If you are an employee and have worked there for 12 months, you are a covered employee. So, to be covered by the FMLA you have to have been an employee for 12 months with an employer that has 50 or more employees during the year.
What does the FMLA do? For the most part, it requires your employer to give you an opportunity to take off time from work for what’s called a serious health condition. And basically, if you have to go for medical appointments on an ongoing basis, that’s a serious health condition, and they can’t fire you or give away your job for 12 weeks. And it can be 12 continuous weeks, or 12 weeks in the aggregate, meaning, for example, let’s suppose that you have an injury where you have to take off a week, and then you are fine for three weeks, and you have to take off another week again; that’s two weeks and that counts towards the 12. So they don’t have to necessarily be one right after the other. That’s all the FMLA is. But unlike workers’ compensation, the FMLA doesn’t say anything about whether they have to pay you; in fact, it’s unpaid. But there may be other ways you can get paid.
How do workers’ compensation and the FMLA interact?
We see worker’s compensation and the FMLA start to interact with each other in three different ways. When a client is off work because of a work injury with restrictions, and they receive a letter asking them to fill out an application for FMLA. But can your employer require you to request family medical leave? The short answer is yes, but it’s not as important as you think, let me explain why. FMLA is just an obligation on the part of your employer in that they aren’t allowed to replace you or give your job permanently to somebody else. They have to hold that job open for you or at least allow you to come back, provided that you can come back and do that job within 12 weeks.
Be informed, it’s considered enough legal notice to simply tell your employer that you’re injured and need medical treatment, and then giving them the reports. However, some employers will require your paperwork to be filled out in advance. Your company’s workers’ compensation doctor will sometimes need to fill out some of the paperwork for you. If for some reason your doctor does not want to sign the paperwork you need to make sure they still give you a document with your diagnosis, what your restrictions are, and what your treatment plan is. That is a standard workers’ compensation document that the doctor should be able to give you. Then you just attach that form to the FMLA request and that is sufficient by law and it obligates the employer to keep open the job.
What happens if the FMLA expires?
What happens when the employer says, “Your FMLA has expired.” Now, your employer can have different rules that exceed FMLA. There are some employers who are understanding of your work injury and will hold open your job for a year. That is a voluntary agreement between you and your employer and it’s a benefit your employer is willing to offer you. At a minimum, if they are a covered employer under the FMLA, they have to at least give you 12 weeks.
If your employer says that the FMLA covering you has expired, you must speak with your employer and discuss if you can do your regular job with some accommodation or do a different position. If you are unable to do your old job even with accommodation and the FMLA has expired, the employer is no longer obligated to keep your job and they have the right to replace you.
Troubles with FMLA and Work Injuries? We’re here to help
Every case is different and sometimes really complicated, so if you or someone you know is injured on the job reach out to Kaplan Morell for a free and confidential consultation to help inform you on your rights. Our attorneys are fully experienced in workers’ compensation law and we have been helping injured and disabled workers since 1997. Call 866-356-9898 or visit https://kaplanmorrell.com for more information.
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