FMLA, Workers Comp and Sick Leave

Hi everyone.

An employee was injured on the job, but Workers Comp required numerous tests before accepting his claim because the injury didn't seem to match the action. In the meantime, we paid the ee his sick leave, then annual leave and eventually asked for sick leave donations for him.

Workers Comp told me today they would accept the claim which means we get the check to reimburse 2/3 (approx) of his used leave.

We realized today that the ee is two weeks past his 12 week FMLA entitlement.

Not that we're looking to get rid of him, but I'm looking for clarification. I was informed by an HR consultant that as long as he has sick leave, we can't take an employment action against him. I thought we had the option to dismiss after the 12 wks was used. Which thought is accurate?

Also, shouldn't we reimburse the donated sick leave first?


  • 10 Comments sorted by Votes Date Added
  • Did you send FMLA paperwork to the employee at the beginning of this ordeal and advise him that his leave was counted as FMLA?
  • I don't know about Nevada, but in Oklahoma we have been advised by our employment law attorneys not to discharged employees while they are off on WC.
  • Joanie, does you also not terminate if an employee is out one and a half years?
  • Sue,

    We do not terminate an employee on compensation until we get the final determination from the WC court. The day we get notification the case is final we terminate. I have one employee who has been off on WC since November, 2006. We expect to close the case within the next 2 months. As for benefits, vacation does not accrue based on time, it is awarded annually and can not be carried over, and the employee must be available for duty the day before and the day after vacation, so we have no cost there. We pay for life insurance and a small disability insurance policy which continues during comp time. Our ee's contribute to health coverage, so as long as the ee continues paying their portion of the premium, they keep coverage while on comp.

  • I agree with Joannie that an employee has job protection while on a workers' compensation claim.

    I think your HR Consultant's statement not to terminate an employee who has sick leave on the books, was a legal theory (and a good one) rather than a hard and fast regulation. Many years ago (possibly pre-FMLA days), I was involved in an arbitration where the arbitrator ruled that we could not terminate an employee for excessive absences when the employee had sick leave on the books. The arbitrator's theory was that sick leave was an earned benefit, and once earned, the employer could not ding the employee for using the benefit (as long as the sick leave was for a legitimate use). I am not aware of any court cases that validate that theory; but wouldn't be surprised if they existed.

  • Thank you for your responses. That helps!
  • Another question. While the ee is on WC, do you send the letter notifying them that FMLA has expired and ask of their intentions to return to work?
  • We do notify the employee when FMLA has been exhausted (actually, we try to get the notice out about two weeks in advance). If the WC claim is still active, or the employee still has entitlement under our state family and medical leave law, we would note that in the letter. We don't ask them their intent. If they have exhausted all entitlement, we tell them they are expected to return, with a medical release, on "X" date. If they are unable to return, they are to notify us ASAP.
  • Those are good ideas.

    I already sent out a similar letter but didn't include that his WC claim was still active so this had no effect on his employment status. As a result he's in a panic. I'll include that statement in future mailings. Thanks!
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