If you work for an employer who employs more than 50 employees and you have worked sufficient hours to qualify for FMLA time (29 U.S.C.2601), you may want to ask that any time you are off work for your work injury be designated as FMLA time, particularly if you expect to be released full duty before your full 12 weeks of FMLA time is up. Many employers require that any time off for a work injury be designated as FMLA time so as to reduce your 12 weeks of FMLA. A recent 9th Circuit case (Escriba v. Foster Poultry Farms) appears to question that, but the Department of Labor website still states that an employer may legally deplete FMLA time for a work injury, even if the employee doesn’t want FMLA time to be used. However, if an employer forgets or doesn’t require that FMLA time be reduced for a work injury, then the employee will still have FMLA time (unpaid leave time) available for your later use.
Why then would you ever want to use your FMLA time while you are being compensated for your time off work under an accepted workers’ compensation claim? One reason would be if you think your employer may intend to replace you while you are off work and will not offer you employment after you return from your work injury. Under workers’ compensation law, your employer does not have to hold your job open for you. If you are released full duty without any permanent work restrictions, your employer can tell you that it was necessary to find someone else to do your job, or that they decided to downsize while you were gone. Under those circumstances, workers’ compensation will terminate your benefits, and your only recourse is to file for unemployment benefits while you search for a new job. However, if you properly requested FMLA time while you were out for the work injury, and if haven’t used all your FMLA time, your employer must return you to your pre-accident job. Just make sure that you follow all company policies and follow the steps to ask for FMLA protection when you are off work.
