posted on Tuesday, April 29, 2008 10:50 AM
by
Lou Michels
Workers' Compensation Absence Does Not Equal FMLA Protection
A recent case out of the 7th Circuit clarifies the confusing interplay between workers' compensation leave and leave covered by the FMLA.
The employee in this case suffered the all-too-common back injury and was out of work from January 19, 2004, through August, when he was released to return to work. The company's absenteeism policy tracked the minimum amount of leave required under the FMLA. Specifically, the employee was allowed 480 hours of time away under the company's handbook. The company was careful to note in its handbook that FMLA time runs concurrent with any short-term disability or workers' compensation covered absences. The company automatically terminated anyone who was unable to work for a total of more than 12 weeks, regardless of the reason for the absence.
Important safety tip here -- such a policy may run afoul of the Americans with Disabilities Act, unless the company is conducting a case-by-case review of the employee's status and job requirements at the 12-week point.
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. In this case, the employee had already used more than half of his 480 hours, and the company terminated him at the end of his FMLA entitlement due to excessive absenteeism.
The employee sued for exercising his workers' compensation rights, wrongfully requiring him to utilize FMLA leave, rather than temporary total disability time, and terminating him after he attempted to return to work with restrictions in a light-duty position.
Both the district court and the court of appeals rejected all of the employee's claims. The court of appeals first noted that the plaintiff could not establish that the employers' reason for terminating him -- excessive absenteeism -- was a pretext for covering up improper motivation. The court held that an employer may fire an employee for excessive absenteeism even if the absenteeism is caused by a compensable injury under the workers' compensation system. 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 or some other type of paid leave of absence.
This is a reasonably clear-cut win for a company that shows the benefits of complying with the FMLA notice requirements for concurrent running of leave of absence and FMLA time off. Under these circumstances, the employer is covered and can actually run a manageable workers' compensation and FMLA leave of absence policy.