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.
In Nebraska, an injured worker who is laid off, fired or leaves a job for good cause can collect unemployment benefits and still receive Temporary Partial Disability (TPD) benefits and Permanent Partial Disability (PPD) benefits from the workers’ compensation insurance company. The Nebraska Labor Department unemployment law does not allow a worker to receive unemployment during the same week the person is paid Temporary Total Disability (TTD) workers’ compensation payments.
To receive unemployment benefits, the injured worker must be ready, willing and able to work. As long as injured worker is ready, willing and able to work within one’s own restrictions, that worker can receive unemployment benefits during the same week that they are entitled to TPD and PPD benefits.
If a person is totally unable to work and getting TTD benefits, that person cannot receive unemployment benefits since they, by definition, are not ready, willing and able to work.
Under the workers’ compensation laws, it is also important to remember that compensation benefits cannot be offset with what is paid under the unemployment benefits. For guidance, please refer to Nebraska Statute 48-130 that supports this rule of law.
If you have been laid off or terminated, you are still entitled to workers’ compensation benefits in the above situations.
If you have any questions, call us for a free consultation.
Return-to-work issues seem to involve the blind leading the blind, even in the best circumstances. Doctors, especially general practitioners, are unsure what exact work restrictions are needed for an injured employee. Employers may not always have a good idea, assuming they are acting in good faith, what the requirements for the job are as well.
This can be further complicated if an employee attempts to come back to work part time from temporary disability. Not only do you have to navigate the issues of whether the job is appropriate, but you also have to deal with how much you get paid for what is called temporary partial disability.
What is temporary partial disability?
Temporary partial disability represents two-thirds of the difference between what you are making and your pre-injury average weekly wage. Though this seems simple in theory, it can be complicated for many reasons. Here are five things that employees can do to ensure they are being paid the proper amount of temporary partial disability:
Keep track of your pay stubs: Temporary partial disability is difference between your pay and your average weekly wage. So you need to know your pay in order to determine that amount. Sure employers can do this, but sometimes employers, especially if they are self-insured, have incentive to drag their feet. Also, many companies will outsource their payroll so that information may not be readily available to them. The best solution is to have that information on hand yourself. Having your pay stub will also allow you to know your pay period, which is also important.
Keep track of your hours on daily basis and/or get a copy of time card: Temporary disability is usually paid weekly. Many employers will pay every other week. The pay periods between your paycheck and your disability check might also vary. Sometimes checks will get delayed because an insurance company legitimately has to investigate what benefits have to be paid for one week. You can simplify this for them by providing your time card. The U.S. Department of Labor has a good app for this that you might want to use that tracks hours worked.
If your job is too hard to do physically, make a doctor’s appointment right awayto see if you can get your restrictions changed: Delaying a visit to the doctor may not only damage your health; it can also cost you money. An employer can attempt to deny and delay payment between the time where you stopped working at a “light duty” job and when a doctor took you off work and you start receiving temporary total disability again. You may not be able to recover this money, short of going to court, but you do have some control over keeping these gap periods as short as possible.
Turn in your time cards and time sheets to your workers’ compensation attorney or insurer: Don’t assume that your employer is turning over your hours to their workers’ compensation insurer. Be sure that you (or your lawyer) are turning in that information to ensure prompt and full payment.
Make sure that you know your average weekly wage: Workers’ compensation benefits are generally some percentage of your average pay over a time period. Employers will often turn over this information to their workers’ compensation insurer for them to determine how much you should be paid. If you think you are getting shorted, ask the insurer for the basis of their calculations and run it by an experienced workers’ compensation lawyer in your state or the state where your claim has been filed.