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  1. #1
    Corky53081 Guest

    FMLA and Workmans comp run concurrent?

    What is the name of your state?What is the name of your state? Wisconsin
    Is it common for an employer to deduct time off my 12 week allotment of FMLA while I'm out of work on a Workmans comp covered issue? I hadn't applied to use it at that time, and wasn't aware it was being charged to fmla since it was a work related injury. When I was in an auto accident recently and wanted to take fmla, I was told I didn't have any left! Can they run them concurrently?
    Thanks,
    Corky
  2. #2
    cbg
    cbg is offline Senior Member
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    Yes, it is legal for them to run FMLA and workers comp concurrently and yes, it is quite common for an employer to do so.

    In fact, if ANY condition, whether it is work related or not, qualifies as a "serious health condition" as defined under the statute, and if the employee and the employer both qualify for FMLA, then the employer is required by law to apply FMLA, regardless of whether the employee asks for it or not.

    However, I'm slightly concerned by the fact that you were not notified at the time that FMLA was being applied. How much time total were you out for your workers comp injury/illness?
  3. #3
    Corky53081 Guest

    Lightbulb to cbg, time out with workers comp.

    Thanks for the info. I was out for 11 weeks with a non workers comp. hip replacement. After that I had carpul tunnel surgerys on both wrists which was work related and was off work, covered under workmans comp for 2 weeks per wrist. So......another month after that. When I asked my employer how I was supposed to know this time was being applied against my fmla, she made a face at me and said,..."Why didn't you ask?" I take it they must give you notice. ? .
  4. #4
    cbg
    cbg is offline Senior Member
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    They are supposed to give you notice. However, a couple of years ago there was a landmark US Supreme Court case, Ragsdale v. Wolverine. Without going into a whole lot of detail (although I will if you insist ) the end result is that while the Court would infinitely prefer that notice be given, as long as you receive all the time that you are due and are not harmed by the absence of notice, the employer is essentially off the hook.

    You are entitled to 12 weeks of protected leave per 12 month period. A 12 month period can be counted in a number of ways; calendar year, fiscal year, or a rolling 12 month period starting when you first take your leave. They can't pick and choose; they have to pick one and stick with it. Most companies in my experience use the rolling year, although some use calendar or fiscal for ease in administration.

    Please note that you get 12 weeks per 12 MONTH PERIOD - NOT 12 weeks per occurrance.

    In your case you have received a total of 15 weeks leave; more than the law requires. That being the case, under Ragsdale it is unlikely that you have any case against the employer for non-notification. It is also correct that you do not have any time to use. And, to get back to your original question, EVEN IF they had not counted the time you were out on w/c, you would STILL only have had one week available since you used 11 weeks for your hip replacement.
  5. #5
    Corky53081 Guest

    workers comp/fmla

    Thanks for your response. Since then my employer has conceded that since they hadn't let me know that they were charging my fmla for the workers comp issue, they gave my back one week. However, after I was back to work I experienced wrist pain for which I went to our "walk in clinic" and by a Dr's written notice was given one day off work returning the next day. They charged that to my fmla, giving me notice within the week that they had done so. I thought it was a fluke since I hadn't applied for it. When I requested the week that the Dr. excused me from work after the auto accident, I was told mid week that I only had 4 days left leaving me with one day that I was charged "hours" for. That one day put me at diciplinary action at work for attendance. My query then becomes, since they didn't let me know that State medical leave, Federal medical leave AND workmans compensation all run concurrent, can they still reprimand me for that one day? I've heard of something called the "Exclusive Remedies Provision". What this applies to I'm not clear on. Are you familiar with this? And, considering all the facts, is my employer still treating me fairly?
  6. #6
    Corky53081 Guest

    in addition

    Also, as an after thought, doesn't the federal medical leave being charged need to be a period of 3 or more days, before my employer can charge it against fmla? In that sense, since I was back to work without restrictions before the "one day" in question, can they still do what they did?
    thanks,
    corky
  7. #7
    cbg
    cbg is offline Senior Member
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    It is not necessary for an employee to "apply" for FMLA for it to be charged to an absence. As I said in my initial post, if the employer, the employee and the condition all qualify for FMLA, then the employer is REQUIRED to consider it FMLA leave.

    As for the three-day notice, that's exactly what Ragsdale was all about. Prior to Ragsdale, the DOL had interpreted the statute in that way - if the employee was not notified within three days, then FMLA could not be applied and FMLA protected time started only when notification was received.

    Then came Ragsdale. Tracy Ragsdale had been out on medical leave for seven months when her employer finally termed her employment. She sued, saying that her employer had never notified her that she was on FMLA leave and therefore she was entitled to an additional 12 weeks protected leave.

    The case went all the way to the US Supreme Court, where it was ruled that the DOL had misinterpreted the statute, and that failure to notify the employee that time was being charged to FMLA did NOT mean that time prior to notification could not be FMLA - applied. While the Court made it clear that they were not saying that an employer had no responsibility to notify, they also made it clear that as long as the employee was not harmed by the failure to notify and they received all the time due them, the employee was not entitled to additional time over and above the initial 12 weeks.

    ERISA's "Exclusive Remedies Provision" has nothing to do with this kind of situation.

    I have read your posts carefully and while I agree that your employer SHOULD been more careful about notification, I cannot see that they have violated the law, and I cannot see where you are entitled to any more time than you have already received.
  8. #8
    Corky53081 Guest

    fmla/WCA/and other things

    WI If the "Exclusive Remedies Provision doesn't apply to this then what was the argument in Finnell v. DILHR . I was told that this case clearly indicates that Workers Compensation, if applicable, trumps the Family Medical Leave law. That, any time away from work due to a Workers Compensation claim is controlled by the Workers Compensation law and not the Family Medicl Leave law. Accordingly, time away from work due to injuries can not be counted against you under both laws. It has to be one or the other, and if you are rehabilitating a Workers Compensation injury, than the Workers Compensation law is the only law that applies. At the risk of asking you to repeat yourself, where am I failing in the logic of this?
  9. #9
    dtown7 is offline Junior Member
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    From my own experience it's one or the other. That's like being on Work Comp and short/long term disability at the same time. Work comp takes precedent over FMLA. One has nothing to do with the other.

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