You No Longer Just Should Run FMLA Leave Concurrently with Temporary Total Disability-Now You Have To

Or, should I say, according to the U.S. Department of Labor, if you don’t you might find yourself in hot water.  According to an opinion letter the Department of Labor issued last month, employers must designate FMLA eligible time as such, even if the employee would prefer to use sick leave or some other type of leave to cover that period of absence.  Before we get further into the details of the Department of Labor opinion letter, let’s briefly review how the Family Medical Leave Act interacts with workers’ compensation claims.

What are the basics of the Family Medical Leave Act?

The Family Medical Leave Act (“FMLA”) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage. Eligible employees are entitled to 12 workweeks of leave in a 12-month period for, among other things: a serious health condition that makes the employee unable to perform the essential functions of his or her job. A “serious health condition” therefore includes, by definition, any condition that entitles a worker to temporary total disability compensation.

In order to be covered under the FMLA the employee must have been employed with the company for 12 months. The employee must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave.  A private-sector employer is covered by the Family Medical Leave Act if it employs 50 or more employees within a 75 mile radius of the covered employee’s principal worksite.

Why it’s a good idea to run FMLA leave concurrent with temporary total disability

Most employers run FMLA and temporary total disability simultaneously in order to make sure that they stay in compliance with the requirements of the FMLA, and to limit the amount of time injured employees can be away from work.  If an employer does not designate ongoing temporary total disability compensation as FMLA leave, the employer could find itself in a situation where it is “one employee short” during the entire time that an injured worker is on temporary total disability and then, later that same year, have the employee request their additional 12 weeks of leave under the FMLA for the same, or another condition.

What is a Department of Labor “opinion letter”?

A Department of Labor opinion letter is an official, written opinion on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. The employer describes its own unique situation and asks for an official comment on the employer’s interpretation of the law.  If the DOL chooses address the question, it issues an opinion letter, stating whether the employer’s interpretation of the law is consistent with the department’s.

Opinion letters are not binding, and they may not even turn out to be “the law” as interpreted by a specific court. However, they are meant to give employers the information they need to comply with federal labor laws.

What did this Department of Labor opinion letter say about running FMLA and TTD concurrently?

In short, as noted above, the letter indicated that employers have a legal obligation to designate any FMLA qualifying leave as FMLA leave.

The letter did not indicate whether it involved a workers’ compensation claim or not. It was in response to a question from an employer about an employee who was eligible for an FMLA covered period of absence but wanted to use paid sick leave instead. However, the language of the opinion letter makes it clear that the Department of Labor’s opinion would cover a period of temporary total disability compensation:

“an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave….. The employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation . . . [If] an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”

Employer Best Practices Regarding Workers’ Compensation and FMLA Leave

First and foremost, if possible, place employees in a light-duty job program and avoid the issue altogether. Being involved in a light duty job keeps the employee as part of the company’s team, and prevents the employee from self-identifying as unable to work.

If the employer cannot accommodate the injured worker’s restrictions, the employee is entitled to temporary total disability compensation.  The opinion letter makes it clear that that the first 12 weeks of that period must be designated as FMLA leave.  There is nothing stopping the employer from providing additional leave when FMLA leave ends.  The FMLA explicitly says so: “Nothing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA.” 29 CFR 825.701(a) Per this opinion letter, however, the employer cannot designate the additional leave as FMLA leave once an employee has exhausted 12 weeks of leave.

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