First of all, I am a Virginia workers’ compensation attorney, so any information given here is strictly related to Virginia workers’ comp claims. If you have questions regarding FMLA that do not involve a work injury situation, you need to contact a labor law attorney. If you would like to speak to a labor law attorney, please contact my office and we can put you in touch with an excellent attorney for labor and employment law issues. (Department of Labor website)

What does the Family and Medical leave act provide?

The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 work weeks of unpaid leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.

Military Benefits

The FMLA also provides certain military family leave entitlements. Eligible employees may take FMLA leave for specified reasons related to certain military deployments of their family members. Additionally, they may take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered servicemember with a serious injury or illness.

Time Off of Work

FMLA is protected time off of work; it does not pay your wages and can be taken for several reasons. Receiving FMLA benefits does not reduce or impact your workers’ compensation benefits in any way.

When You Are Injured at Work

When an injured worker has been taken off of work for an extended period of time, their employers will require them to fill out FMLA paperwork as well. This simply means that for the period of FMLA taken, you job is protected for that time frame. Once the FMLA expires, there is no more protected time off of work.

If a worker is out on documented and approved worker’s compensation, can they be required to take leave under FMLA and are these two programs related at all?

The FMLAand the Virginia Workers Compensation Act are not connected. However, both acts may be applied in your situation simultaneously. The FMLA (which is a federal law) requires your employer to keep your job open for you for 90 days of unpaid leave if the employer has 50 or more employees. The Virginia Workers’ Compensation Act (which is a state law) provides for lifetime medical coverage for your injury, payment for lost wages, payment for any permanent disability and for vocational rehabilitation.

Regardless, if the employer is required to follow the FMLA, the employer may have an incentive to retain you while you are on workers compensation so when the doctor releases you to light duty, they will “accommodate” those restrictions which would end the insurance company paying for your lost wages. The more workers compensation benefits you are paid, the higher the employer’s premium will be. On the other hand, if you are released by your doctor with no restrictions, your lost wage benefits will end and the employer most likely will not re-employ you if you are out more than 90 days due to your injury.

The reason I say that most likely you won’t keep you job is that you are probably now considered “a liability” (i.e. someone with a bad back who is likely to injure their back again) and there really is no company loyalty to employees these days. However, if you are lucky enough to have an excellent relationship with your employer and/or your services are not that easily replaceable, the odds are more in your favor that you will get your job back. There really is not an issue of “requirements”. The FMLA employer can let you go after 90 days regardless. If you do not fill out the FMLA papers, then an employer may fire you for job abandonment or not following company policy much sooner than the 90 days. The filing of the FMLA papers protect the employee in that as long as the paperwork is proper for FMLA purposes, you job is protected for 90 days.

The Virginia Workers’ Compensation system DOES NOT offer any job protection. If you are off of work due to an injury, even if it was an on the job injury, you can be terminated at any time (except when you are protected by the FMLA as described above).