questions & answers

Question: My son was hurt at work and was out for 3 months. He went back to work on light duty or 2 weeks. He then was in a personal motorcycle accident and has been out of work for 1 1/2 months. On his personal accident he went to apply for FMLA and was denied and told that his work already used his 12 weeks up. He knew nothing about this. He was on workmans compensation at the time that they used his FMLA. Is there any recourse to get his FMLA back so he can use it for his personal accident? Why would he need to use his FMLA when he was on workmans compensation?

Answer: You are dealing with two laws here - the Family Medical Leave Act ("FMLA") and Workers Compensation ("WC"). The FMLA provides 12 weeks of job protected leave in an FMLA year. An FMLA year does not have to be a calendar year. Employers can choose from 4 different options which FMLA year they use. WC provides paid medical treatment of a WC injury and compensation to the injured employee if work is missed because of the WC injury. WC does NOT provide job protected leave for the injured employee. The employer appears to have covered the non-protected WC time off with job-protected FMLA leave. Employers can apply FML without notifying the employee as long as the employee would miss work regardless of the absences being covered or not covered under the FMLA. If your son was able to return to work earlier than he did, even if he would have returned to work on light duty, the employer was obligated to tell him your son his time off was considered FMLA.