FMLA and North Carolina Worker’s Compensation Claims. What is the Family Medical Leave Act?
- Am I required to make a claim?
- Can my Employer require FMLA?
- What is it?
- How Does it Work?
- What are my options?
The bottom line is that the return-to-work decision, whether or not you go back to work, is really, really important – Kevin Jones
Modified Transcript of “What Is the Family Medical Leave Act?” for the Hearing Impaired
Hi. My name is Kevin Jones. I’m the Workers Comp Specialist with the Dodge Jones Injury Law Firm. We have offices all around Eastern North Carolina: New Bern, Morehead City, Beaufort, Jacksonville and Greenville. I’m here to talk to you about some frequently asked questions that I get in my practice as a Workers Comp lawyer.
One of those has to do with Family Medical Leave Act. Oftentimes, when someone goes out for a work-related injury, the employer, if that act applies to them, if they’re a big enough company where the FMLA applies to them, they will ask that employee, they will force that employee to go ahead and start their FMLA leave period. That causes a lot of concern with folks. They want to know why. They don’t understand. “I’m not on Workers Comp, why are they putting me on Family Medical Leave?”
The answer is, is they can do that and it can be for several reasons, but none of them are helpful to the injured worker. They want to keep their options open. When they start the FMLA and it gets used up, then they have the option to go ahead, if that person is still out of work on that resource because of the work-related injury, they have the option to then go ahead and terminate that person and fill their spot, and they sometimes do that. As soon as the leave period is over, boom, letter goes out. “We can’t accommodate your restrictions,” or “You’re still out of work. Unless you can give us a return-to-work note, you’re going to be let go” and, then, they replace that person with someone else on that job and the job’s gone.
Other employers will do the FMLA, get to the end of the FMLA and, then, they’ll extend it and sometimes indefinitely. The reason that those employers may do that sometimes is they, again, want to keep their options open. They want to be able to say, at any point in time, that they want to have a reason to put somebody back at work and get them off the Comp check and put them in a light duty job. They want to keep that option open.
Sometimes that can be a great thing for an injured worker and other times, it can be something that’s a problem. It really depends on the situation with the employer. One person going back to work light duty may be wonderful because, “Okay, now I’m back to working towards my retirement because I’m collecting a paycheck, instead of a Workers Comp check, so I’m counting up days that add to my overall period of employment which can help, plus all the other benefits stay in place. That can be a good thing for one employee. For other employees, it could be a bad thing because it could be an employer that’s just looking for a reason to get the Workers Comp check stopped and, then, come up with some other reason to then let that person go after the check had stopped.
One of the things about Workers Comp that a lot of people don’t realize is that when you are out of work receiving a check and it’s an admitted claim and when I say check, a disability check, what’s called a Temporary Total Disability Check, when you’re out of work, the employer and the Workers Comp adjuster, Workers Comp carrier, in order to stop that check, they have to have permission from the Industrial Commission. They have to file a motion. There’s an opportunity to respond. There’s a telephonic hearing with the lawyers on the phone and, then, there’s a decision that’s made as to whether they’re going to grant their request to either terminate or suspend those benefits.
That right is important to an injured worker in a situation where they may be walking into a very adversarial employment relationship when they go back to work light duty, where they may be getting picked on, where they may be getting confusing instructions, where they may be getting set up to be terminated, to take steps to terminate. A lot of those things can and do happen. When this is going on, you’ve got to understand the specifics of your situation and you’ve got to get advice about, in your case, what should you do.
I tell people it’s a case-by-case basis. People ask me a lot: “What if they want me to back to work light duty?” My answer is always this: It depends on what the offer is. It depends on what the doctor says. It depends on the circumstances of the case, where we are in the litigation, if there is litigation, what’s been filed with the commission and what has not. One case to the outside, it may look like, “Okay, Kevin said this person should go back to work in a light duty job,” and one that looks very similar, I may have different advice because of the specifics of that case.
The bottom line is that the return-to-work decision whether or you go back to work is really, really important and you really do need legal advice if there’s any concern at all about what might happen when you go back. Because circling back around to where I started, if you’re not at work and receiving a check, they have to file a motion to cut you off from your benefits. If you’ve actually gone back to work and clocked in even for a few minutes and, then, they decide that they don’t need you and they decide to let you go, and I’ve seen it happen more than once, they don’t need anybody’s permission to cut off that check. They simply file a return-to-work form, either a trial return-to-work form or a regular return-to-work form and that’s it, they’re done. You have to go to court and spend potentially years trying to get those benefits reinstated because you’ve gone back to work and they were legally allowed to cut the check off by filing a piece of paper without having to ask anyone’s permission.
If there is real concern that the only reason an employer is trying to get you back to work is so they can cut the check off and they’re very shortly thereafter going to let you go, then you really need to get legal advice about what to do. Because whether you go back or not can have drastic consequences because, on the flipside, if you refuse that job, they are going to file a motion to cut your check off and we better have good grounds to keep that from being approved if we’re going to say no to a job.
If you have more specific questions about your claim, if you’re worried about a light duty job that’s being offered or that you’re already working and would like to talk to me about it, give us a call. I’m happy to sit down with you.
Kevin Jones, Attorney at Law