Most people injured on the job will return to work quickly. However, there are some who do not. They may return eventually, but it will take some time, particularly if the injury was catastrophic or if surgery is needed. Those people are, understandably, concerned about whether they will have a job when they are able to return.
From a purely workers’ compensation perspective, your employer does not have to hold your job and can terminate your employment for being unable to return to work. There is nothing in the Virginia Workers’ Compensation Act that requires the employer to hold a job for an injured worker, even if the injured worker was hurt on the job.
Just because the Virginia Workers’ Compensation Act does not protect your job, it does not mean that there are no laws or policies that will do so. The Family and Medical Leave Act (or FMLA) provides eligible employees up to 12 workweeks of unpaid leave per year and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. Keep in mind that, when the injured worker is able to return to work, the employer is not required to give them the same job they were doing before they went on leave. However, the employer does have to provide an equivalent job and at the same rate of pay.
FMLA does have its limitations. It only applies to “covered employers.” A covered employer includes private- sector companies that employ 50 or more workers, all schools-public or private-no matter the number of employees, and any government agency- local, state, or Federal. FMLA covers a good number of employers, but not all employers. Basically, small private companies do not have to comply with FMLA.
Additionally, FMLA requires the injured worker to be an “eligible employee”. An eligible employee is one that works for a covered employer, but also, that the employer has at least 50 employees within 75 miles. The employee has to have worked for the employer for at least 12 months, and in that 12 months, worked at least 1,250 hours. It will not apply to some part-time employees, or, employees who have worked for the employer for a short period of time.
Even if FMLA applies to you, there are limitations in what it covers. FMLA only requires that a job be held for you for 12 weeks. Some injured workers are out of work much longer than that. An extensive back surgery could potentially keep an employee from returning to work for at least six months. FMLA will apply for the first three months, but not after that.
Basically, FMLA is protected time off of work. It does not pay your wages. Many times, when an injured worker has been taken off of work for an extended period of time, the employers will require them to fill out FMLA paperwork as well. This simply means that for the period of FMLA taken, the employee’s job is protected for that time frame. Once the FMLA expires, there is no more protected time off of work. Receiving FMLA benefits does not reduce or impact workers’ compensation benefits in any way. In this respect, it can work in conjunction with Workers’ Compensation to ensure that an injured worker receives lost wages while the injured worker is unable to return to work, and ensures that a job is available for the injured worker when he or she is able to return to work.
As with any law, there are exceptions and nuances that are quite detailed and require in-depth knowledge of the law. My office handles workers’ compensation claims, and I know how FMLA works with the Virginia Workers’ Compensation Act. If you have questions about FMLA that do not involve workers’ compensation, 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.
There are some employers who will keep the employee listed as an employee even if FLMA does not apply, or, who will keep an employee on the roles for longer than 12 weeks even if FMLA does not apply to them. This can be because of a collective bargaining agreement through a union, or just internal company policy. You will need to contact your Human Resources Department to determine whether your employer has this policy. In these cases, though, keep in mind that the employer may have a job for you when you able to return to work, but if it is outside the 12 weeks that is covered by FMLA, the employer may not have a similar or equivalent position. The benefit of remaining on the roles as an employee is that you may still qualify for the benefits you receive as an employee. This includes personal health insurance to cover your medical concerns not related to your work injury and to cover your family’s medical needs. Since you will not be getting wages from your employer during this period, if you have to contribute to these benefits, you will need to make arrangements to pay for these benefits while you are not working. Sometimes, your employer will wait until you return and collect the entire amount. This can be quite a shock to return to work and not get a paycheck for the first few weeks because your employer is recouping personal health insurance costs.
If your concern about whether your employer has to keep a job open for you is due to concerns about money, you may be entitled to worker’s compensation wage benefits, even if your employer does not have work for you. As long as your injury is determined to be compensable, and your doctor either says you cannot work, or, your treating doctor gives you restrictions that prevent you from doing the job you were doing before you were hurt, you are entitled to temporary total disability benefits or 2/3 of the average of what you were earning before you were injured. This will continue until you return to work, whether with your pre-injury employer or with another employer. (If you are not under an award for the lost wages, you will need to look for a job, too, but that is a topic for another blog.)
Even without FMLA, or without a collective bargaining agreement/ internal policies that require an employer to hold a job for you, an employer may also be required to bring the injured worker back to work because the workers’ compensation insurance company requires that they do so. The continuing requirement to pay lost wages costs the workers’ compensation insurance company money and insurance companies are all about saving money. Keep in mind that most employers pay a monthly premium for workers’ compensation insurance. The workers’ compensation insurance company then pays the losses that the injured worker incurs as a result of the injury and the insurance company wants to pay as little as possible.
They will even encourage an employer to find a light-duty position for the injured worker to allow the injured worker to return sooner, so the insurance company can either stop paying temporary total disability benefits or reduce the amount they pay. If the light-duty job the injured worker is given pays the same as he or she was making prior to the injury, (or more than his or her pre-injury average weekly wage), then there is no wage loss and no benefits are due. If the light-duty job the injured worker is given pays less than the injured workers pre-injury average weekly wage, the insurance company still has to pay temporary total disability benefits (or 2/3 of the difference between the pre-injury average weekly wage and the amount the injured worker is earning in the light-duty job).
It is not always the insurance company pushing the return to work. There are some employers who are paying the losses directly. These are the self-insured employers, (which means that the employer pays both medical and lost wages directly rather than through an insurance company), or the employers who have insurance, but whose deductibles are so high that the employer usually ends up paying for the cost of the entire injury. These employers will also often bring the injured worker back to work as soon as they can to do something that the business needs to be done, so the employer can receive a business benefit for the payments being made.
If you have any questions about your workers’ compensation case, or, the benefits to which you are entitled, please call us (866) 589-0596. We would love to talk to you.
About the Author: Michele Lewane
The Injured Workers Law Firm is a Richmond, Virginia based firm solely focused on serving clients with workers' compensation claims in Virginia. If you have questions about your benefits or if you would like more information on the Virginia workers’ compensation system, order our book, “The Ultimate Guide to Workers’ Compensation in Virginia” , or call our office today (804) 755-7755.