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 FMLA (the Family Medical Leave Act) and 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.


About the Author:

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.