Taking leave to care for a family member can be complicated by a work injury
Work injuries create all sorts of unexpected complications for injured worker. One complication is what happens when an injured employee on alternate or light duty needs to take time away from work for a family emergency.
If the employee has been employed with the same employer for a year, worked more than 1250 hours during that year and the employer has more than 50 employees within a 75 mile radius, then the employee could take leave for up to 12 weeks under the Family Medical Leave Act without worrying about losing their job.
If the employee or employer is not covered by the Family Medical Leave Act, then things can get sticky for an injured worker as the employer is not obligated to provide unpaid family leave. In Nebraska, an employer is still obligated to pay temporary disability regardless of whether an employee is fired or quit. But employers, especially ones that are self-insured for workers’ compensation, ignore the law which means that an employee has to wait for a hearing to get temporary disability benefits paid. There may also be a question as to whether an employer’s ability to accommodate a work injury but for a termination or quit should factor into how much an employee should get paid for temporary disability.
Although I haven’t encountered this issue, I suspect an FMLA eligibile employee who took family leave while on light duty could have an employer deny payment of temporary disability. Ultimately I believe a court would award temporary disability in that circumstance. In other words, the analysis for the purpsoses of workers’ compensation benefits would be the same even if the new employee has less job protections for taking family leave.
Our colleague, Tom Domer in Milwaukee, recently criticized the media for their misleading coverage of “FMLA abuse” among public employees in Milwaukee. This criticism parallels our criticism about misleading coverage of an unemployment decision in Iowa. Domer pointed out correctly that FMLA leave is unpaid. The fact that FMLA leave is unpaid leave makes it possible for employers to abuse FMLA.
I represented a client with a personal health condition that temporarily prevented that person from doing heavy lifting. My client told human resources about this health condition, and that person was forced to take unpaid FMLA leave. Of course, under the Americans with Disabilities Act, there is an obligation to engage in an interactive process to determine what reasonable accommodations could be made so the disabled employee can perform the essential functions of the job. In the case of my client, there was evidence that that person’s employer did not engage in that process. Though my client’s case ultimately resolved, I doubt that my client is the only person who has had a similar experience with forced FMLA.
I suspect some employers use unpaid FMLA leave as a way to reduce payroll expenses even if an employee could perform the essential functions of their job with a few simple accommodations. So the next time you hear about employees abusing FMLA, remember that employers can abuse unpaid leave as well.