By Sandy Seay

1/8/2014 -

“O’Driscoll drove with a song The wild duck and the drake From the tall and the tufted reeds Of the drear Hart Lake.” – W.B. Yeats.”

“Well . . . O’Driscoll had a Workers’ Compensation injury 8 months ago and has not been back to work since. Today, he showed up at the door with a release from his doctor, stating he was ready to come back to work. The company has kept him on the roll but I don’t have a place for him now. Do I have to put him back to work?”

In the past few weeks, we have seen several situations where an employee has been absent for some extended period of time, due to a Workers’ Compensation injury. The company has kept the employee on the roll and, in some cases, has continued his health insurance. One day, the employee shows up and is ready to return to work. He has a doctor’s release, with or without accommodation. Since he’s been absent so long, we’ve filled his position and don’t have a place for the employee. What do we do? Here’s the answer . . . .

The first thing to do is determine if you are covered by the Family and Medical Leave regulations. In most cases, you are covered if you have 50 or more employees within 75 miles of each other. The next thing to do is determine if the employee is eligible for FMLA. In most cases, the employee is eligible is he or she has been employed for a year and has worked at least 1250 hours within that year.

If you are covered by FMLA, and if the employee is eligible, you must place the Workers’ Compensation employee on FMLA. FMLA requires the employer to:

(1) provide 12 weeks of unpaid leave

(2) continue the health insurance on the same basis as before the leave and

(3) upon return from leave, reinstate the employee in the same position he left, or an equivalent one.

Workers Compensation leave is, by definition, Family and Medical Leave. If we do not place the employee on FMLA, he or she always has the FMLA in his backpack, ready to pull out and use at any time. It’s important to place the employee on FMLA and get the FMLA clock ticking.

If you are not covered by FMLA, then you should apply your regular Leave of Absence policy, which is usually not as restrictive on employers as FMLA. The key point to remember is that we must place the employee on some kind of leave – either FMLA, if you are covered and the employee is eligible, or Regular Leave of Absence, otherwise. There is no such thing as “Workers’ Compensation Leave,” standing alone.

If you have a current employee who is absent due to a Workers’ Compensation injury, we recommend that you place him or her on the applicable Leave of Absence immediately.

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