Ten Legal Tips for Dealing with Employees on Workers’ Comp Leave
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.
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.