Ten Legal Tips for Dealing with Employees on Workers' Comp Leave

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Dealing with employees who get ill or injured at work in the U.S., and are covered by your company’s workers’ compensation insurance, can raise a host of legal issues for HR. Often I find in my practice that clients misunderstand their rights as employers and let employees take advantage of the system. Here are some tips to help you manage U.S. based employees who need workers’ comp leaves:

1) Workers’ Comp Laws Provide Insurance Benefits, Not Leave. Most states’ workers’ comp laws are only insurance benefit statutes, providing some percentage of salary continuation and medical benefits related to the injury or illness. The statutes themselves do not provide leave. They don’t say "employees who are injured at work get X amount of leave." In fact, although states vary (and be very wary of California in this regard), in many states workers’ comp statutes are not job-protection statutes and employers can let employees go who are on workers’ comp leave. You just can’t fire an employee because he or she got workers’ comp benefits.


2) The Length of Workers’ Comp Leave Is Determined As Is Leave For Any Employee With A Disability Who Can’t Work. How long you need to grant a "workers’ comp related" leave depends on (a) any company policy that governs disability leave; (b) the Family and Medical Leave Act (FMLA) for companies with 50 or more employees; and (c) federal, state and local disability discrimination laws.

3) Leaves Should Run Concurrently. If your company is covered by the FMLA, all leaves to which the employee is entitled should run concurrently (i.e. FMLA leave; "workers’ comp leave"; paid leave under a company disability policy). As soon as an employee is seriously ill or injured and would qualify for FMLA leave, FMLA leave starts, whether the need for leave is work-related or not.
4) Employees Cannot Be Required To Return To Light Duty If On FMLA Leave. If an employee is on an FMLA leave, even if the doctor advises that the employee can return on light duty, the employee may refuse to return until the end of their FMLA entitlement. Employees cannot be forced to return before their FMLA leave is up if they cannot return to full duty. (Note, however, that failing to return may affect the employee’s workers’ comp benefits.)
5) Employers Do Not Have To Accept Employees On Light Duty If They Have No Light Duty Jobs. If your company has no light duty jobs, it is generally not obligated to create one.

6) Returning an Employee To Light Duty From FMLA Leave Does Not Satisfy the Employer’s Return-To-Work Obligation. Employers are obligated to return employees on FMLA leave to the same or an equivalent position. If an employee returns to work from FMLA leave on light duty, the employee’s right to return to the same or an equivalent position continues for the employee’s 12-month FMLA period. (Employees get 12 weeks of unpaid, job protected leave in a 12-month period. That’s the time period to consider with regard to return from light-duty leaves.)

7) Employees Should Provide Return-to-Work Dates. Make sure the company has documentation from the employee’s health care practitioner stating an expected return-to-work date, and require employees to advise in advance both (a) if the employee is not returning on that date, along with a revised expected return date and (b) if the employee is returning.
8) Leaves Can Be Reasonable Accommodations, and Indefinite Leave Is Not Reasonable. If the employee cannot return at the end of FMLA leave (or if the employee is not eligible for FMLA leave), leave can be a reasonable accommodation under applicable disability discrimination laws. Indefinite leave (including leave where the doctor cannot identify a return to work date, or there are constantly extended RTW dates) is generally not reasonable.
9) Employees Terminated On Workers’ Comp Leave Continue Their Benefits. An employee let go while on workers’ comp leave continues to be eligible for benefits until the doctor certifies they can return to work. Continued employment is generally not a requirement for continued workers’ comp benefits.
10) Consult Employment Counsel Before Firing Employees On Workers’ Comp-Related Leave. Many state workers’ comp statutes contain retaliation provisions which allow employees to sue in regular court (not a workers’ comp forum) claiming that they were fired in retaliation for using workers’ comp benefits. Consult with your employment counsel prior to terminations so as not to run afoul of these laws.
Employers should of course take precautions to maintain safe workplaces but employees can still get hurt and need leave. While employers want to be compassionate so employees can mend and return, maintaining control of the situation, and understanding the company’s rights, is important.