Workers’ compensation claims are common in the construction industry due to the heavy nature of the work, and unfortunately that includes claims where employees lose time from work. Employers who have 50 employees working within a 75-mile radius are also subject to the Family Medical Leave Act (FMLA).
FMLA provides employees (who have worked 1,250 hours for their employer in the last 12 months) with job and benefits protection for up to 12 weeks while they need time away from work due to their own personal health condition or to care for a sick family member. In the construction industry, it is common for companies to overlook the fact that FMLA and workers’ compensation lost time claims need to run concurrently.
There are three reasons it is critical to administer FMLA alongside workers’ compensation when an employee starts losing time from work after a workplace injury.
1. FMLA requirements state that an employer must send the FMLA Notice of Eligibility within five business days of knowledge of the leave of absence
An employee does not need to specifically request an FMLA leave notice; rather, it is the employer’s responsibility to designate a leave as FMLA as soon as the employer becomes aware that the employee may miss time from work. The five day timeframe is strict, so as soon as an employee starts missing time from work, disseminate the FMLA Notice of Eligibility (available on the Department of Labor’s website) to the employee via certified mail. This ensures compliance and also gives employees the job protection that they are entitled to under the law.
2. FMLA protects medical benefits for up to 12 weeks
FMLA provides medical benefit protection for up for 12 weeks – but an employer may run into issues with the medical benefit plan if the employee’s leave of absence is not designated as FMLA. Most medical benefit plans have a maximum timeframe for which they will allow an employee’s benefits to continue while they are on a leave of absence/not actively working. The maximum timeframe varies, but it is standard to see 12 weeks (to coordinate with FMLA). This means that if an employee is not actively working after 12 weeks of leave, the employer may be on the hook to pay for the employee’s medical bills because the employer did not comply with the terms of the medical plan contract to protect the employee’s benefits for the maximum time listed in the plan. Designating an employee’s leave as FMLA and protecting medical benefits for up to 12 weeks therefore protects both the employer and the employee.
3. Administer FMLA in a defendable and consistent manner for all employees
Lawsuits in workers’ compensation are unfortunately becoming increasingly common, as well as employment lawsuits alleging discrimination and retaliation for filing workers’ compensation claims. Providing 12 weeks of job and medical benefits protection to all eligible employees in accordance with federal law and making sure that all employees are given the exact same rights will minimize litigation and bolster an employer’s defense in the event of a lawsuit.
Many workers’ compensation claims with lost time qualify as a serious health condition as defined under the FMLA. Employers who have 50 employees within a 75 mile radius have obligations to administer FMLA concurrently with workers’ compensation claims for eligible employees in order to protect the business, but also to give employees job and medical benefits protection under federal law.
