FMLA & Workers' Compensation

lorraineballard

I am the Human Resource Director for St. Helena Parish Hospital in Greensburg, Louisiana. I have several employees out on Workers' Comp, I did not know that I should have designated their leave as FMLA.
In your article "Navigating the 3-Way Intersection of ADA, FMLA & Workers' Comp" on page 18, there is a reference to "employer failed to properly designate leave retroactively as protected leave where it had knowledge of the qualifing reason for the leave".
My question is, can I designate FMLA retroactively for someone who is out on WC?
Thank you Lorraine

marc

There have been judgements falling on both sides of this issue. Each Federal District may set it's own set of precedents so you may need some help with your district.

That said, the last one I remember said something to the effect that the employer can retroactively classify leave as FML - the intent of the act was to provide at least the 12 weeks of leave, not to punish the ER by requiring additional leave just because the ER made a mistake by not classifying the leave.

But as I said, there are judgements on both sides of this issue.

Perhaps one of the forum lawyer members from your Federal District will chime in.

Don D

My opinion is that the cases where retroactive designation has been determined proper is in cases of omission, oversight or something dropping through the cracks. Sounds to me like you did not have a policy which clearly set out your intentions to run such leaves concurrently.

I'm not certain how the DOL or the courts might view your decision to now go that route, or if they would care at all. As Marc said, the employee is getting what the Act intended, time off with job protection. I suggest you outline in your policy statement that leaves will be concurrent and when.

lorraineballard

Thanks for the great tip. I will add to our policy the intent to run FMLA & W/C concurrently where indicated.