The Federal Sector FMLA Blog

With Proper Notice, Employer May Run FMLA Leave Concurrent with Workers' Compensation Absence

The Seventh Circuit in Dotson v. BRP US Inc., No. 07-1375, 2008 U.S. App. LEXIS 5897 (7th Cir. March 21, 2008) confirmed that the FMLA permits an employer, with proper notice to the employee, to run FMLA leave concurrent with a workers' compensation absence. 

Dotson argued that an employer may not run FMLA leave concurrently with workers' compensation. The court noted that the DOL regulations, 29 CFR 825.702(d)(2), specifically permit the running of FMLA leave concurrent with workers' compensation where the employee's on-the-job injury also constitutes an FMLA-covered serious health condition.

To run FMLA leave concurrent with workers' compensation, the employer, the Seventh Circuit observed, must notify the employee of this fact.  The court found that BRP satisfied this notice requirement by including a statement in the company handbook that "All FMLA leave time runs concurrent with short term disability and workers' compensation or any qualifying event."  The court also noted that BRP specifically notified Dotson that it had designated and, therefore, would charge his workers' compensation absence against his 12-week FMLA leave entitlement.   

Comment: The FMLA generally permits an employee's workers' compensation absence to be counted against the employee's 12-week FMLA leave entitlement provided two conditions: (1) the on-the-job injury is a "serious health condition" within the meaning of the FMLA; and (2) the employer provides proper notice that it will and has designated the workers' compensation absence as FMLA leave. 

The same rule applies to civil service employees covered by Title II of the FMLA.  5 CFR 630.1210.

An employer may, however, give this right away.  The FMLA permits an employer to provide more generous leave rights than the minimum required by the FMLA.  Sometimes employers provide more generous leave rights as part of a a collective bargaining agreement, past practice, or in the terms of a company handbook or manual.  In that case, the employer would be prohibited from charging an employee's workers' compensation absence as FMLA leave.   

Employer and labor organizations should carefully check applicable leave policies and practices to ensure that FMLA can be run concurrent with a workers' compensation absence.

No Such Thing as "FMLA Light Duty," Seventh Circuit Finds

In Hendricks v. Compass Group, USA, Inc., No. 06-3637, 2007 U.S. App. LEXIS 1860-6 (7th Cir. Aug. 6, 2007), the employee injured her shoulder at work while performing her vending driver duties.  She applied for workers' compensation benefits, but did not apply for FMLA leave.  Instead of taking FMLA leave, Hendricks elected to take light duty under her workers' compensation program.  While on light duty she was paid $3.23 less per hour than her regular wages. 

Hendrick's sued alleging that Compass violated the FMLA by paying her less while she was on "FMLA light duty."  The Seventh Circuit disagreed, finding that "[t]here is no such thing as 'FMLA light duty.'"  The FMLA, the Court observed, does not require an employer to pay a certain pay rate while the employee is on leave; the FMLA only requires that an employer permit an employee to take up to twelve weeks of unpaid leave for illness and return to his prior post or an equivalent position.  Light duty is a creature of workers' compensation.  As such, the rate of pay the employee is to receive while on light duty is a matter covered by workers' compensation, not the FMLA.

Comment: FMLA leave is unpaid.  An employee who elects to go on light duty in conjunction with FMLA leave will be paid at the rate dictated by worker's compensation and/or the employer's policies.  The FMLA does not dictate any particular rate of pay.  Hendricks tried to argue that the employer failed to return her to an equivalent position from FMLA leave, as demonstrated by her lower wage rate. The Seventh Circuit found that the wage rate was dictated by workers compensation, not the FMLA.  It found that Hendricks did not have an FMLA right to an equivalent position because she was unable to perform all of the essential functions of her position on return from FMLA leave.      

 

Workers' Compensation Board Determination that Employer Had a Legitimate Business Reason for Discharging Employee Does Not Prevent Employee from Maintaining FMLA Lawsuit

In Hamilton v. Niagara Frontier Transportation Authority, No. 00-CV-300SR, 00-CV-863SR, 2007 U.S. Dist. LEXIS 55522, at *22-23 (W.D.N.T. July 31, 2007), the court, relying on Second Circuit precedent, rejected the employer's argument that the administrative determination by the Workers' Compensation Board that the employer had legitimate business reasons for discharging the employee precluded the employee from pursuing his FMLA claims. 

Comment: Employers are rarely successful in arguing that the determination of an administrative agency interpreting another law (e.g., entitlement to workers' compensation) is binding on a court when interpreting the FMLA.  This is because the requirements to establish a right to payment under a workers' compensation statute are not the same as the requirements for establishing entitlement to FMLA leave. 

Of course, this does not mean that information gained during a workers' compensation appeal may not be useful in attacking the validity of the employee's FMLA suit. The admissions and statements an employee makes in their workers' compensation appeal is often very useful to impeach the employee on their subsequent FMLA claim.