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Employer Can Require Employee on Workers' Comp Leave to Use FMLA Entitlement

    Client Alerts
  • April 11, 2008

Almost 15 years after its passage, some employers are unaware that job-protected leave under the Family and Medical Leave Act runs concurrently with other forms of leave, including Workers’ Compensation.  A new case from the Seventh Circuit Court of Appeals, Dotson v. BRP US, Inc., provides a good case study for employers as to how these leaves mesh with one another.

The plaintiff injured his back on the job.  He filed a Workers’ Compensation claim, and was placed on temporary total disability.  At the time he went out on leave, his employer sent him FMLA paperwork, informing him that his remaining FMLA leave would run concurrently with the Workers’ Comp leave.  The plaintiff objected to this, claiming that the employer could not “force” him to use up his FMLA leave while he was out of work on a job-protected Workers’ Comp leave.  He was terminated after failing to return to work after expiration of FMLA leave.

The Seventh Circuit affirmed dismissal of the plaintiff’s FMLA and state law Workers’ Comp retaliation claims.  The court noted Department of Labor regulations issued under the FMLA expressly allow concurrent running of the two leaves.  The employer prevailed in this case because it demonstrated compliance with FMLA notice requirements.  The plaintiff could not claim that he was prejudiced by not understanding that he was using up his FMLA leave while out on the Workers’ Comp leave.  This fact was also stated in the employer’s handbook.  Employers should take clear and immediate steps to notify employees of their leave rights and obligations.

The retaliation claim was rejected under Illinois law.  Like the Carolinas, Illinois allows termination of an employee absent on a Workers’ Comp leave if the employer demonstrates legitimate business necessity for the move.  Employers should be aware that the North Carolina Department of Labor takes the position that a maximum leave policy does not constitute satisfactory business reasons for the termination decision.  Also, the Americans with Disabilities Act may impose additional leave requirements for employees who qualify as protected under that statute.