By Rafael Guzman
I had worked for the factory for 15 years. I was happy and I was proud of the work I was doing. About three years ago I was lifting some parts at work when I sustained an injury to my shoulder. I notified my supervisor and he sent me to human resources. I filled out an incident report explaining how I got hurt and I was then sent to my company's clinic.
The company doctor told me I had a shoulder sprain and I only needed therapy. Well, therapy turned into an injection and the injection turned into a surgery and I eventually missed 14 weeks of work. I was at home recovering from surgery and getting paid workers' compensation benefits. Then about a month ago I received a letter from human resources telling me that I had exhausted my family medical leave act (FMLA) time of 12 weeks and that they could no longer hold my position open. In other words, I had been fired because I was unable to return to work because of the injury that was caused by work.
I called my attorney and told her about the letter. I explained to her that I thought they couldn't fire me if it was a worker's compensation case and I was off work because of the injury. I also couldn't understand why this had anything to do with FMLA! I don't know what I am going to do if I don't have a job to go back to after I am released from care by the doctor. How am I going to survive?
While this story is fictional, it unfortunately happens to many injured workers. If you find yourself or someone you know in a similar situation, it's very important to know what your rights are under both the FMLA and Workers' Compensation Act. This article will briefly explain what each law is and how it is designed to help the injured worker.
The Family Medical Leave Act (FMLA) is a federal law that started in 1993. It allows eligible employees to take up to 12 weeks of unpaid leave in a 12-month period. To qualify for FMLA, a worker must be employed with an employer who has 50 or more employees within a 75 mile radius of his or her worksite, employed for a total of 12 months, and has worked at least 1,250 hours over the previous 12 months. Under the FMLA, a covered employer must grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month period for one or more of the following reasons:
- For the birth and care of a newborn child of the employee;
- For the placement with the employee of a son or daughter for adoption or foster care;
- To care for a spouse, son, daughter, or parent with a serious health condition;
- To take medical leave when the employee is unable to work because of a serious health condition; or
- For limited emergencies; when the employee's spouse, son, daughter, or parent is on active duty or called to active duty status as a member of the National Guard or Reserve.
Under the FMLA an employer has to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the worker left on leave and on the same terms as if the employee had continued to work. However, employees on FMLA will have to pay their part of the insurance premiums while they are out on leave. The law also states that if an injured worker takes FMLA time off, when they return they must be restored to their original job, or to a job that has equal pay and benefits. An injured worker that uses FMLA cannot lose any benefits they earned or were entitled to before they took the time off. After the 12 week period is complete, the employer is not required to keep the position open and can terminate the employment relationship.
The Illinois Workers' Compensation Act is a state law with specific terms, limits, and benefits. If an employee has an injury that arises out of and in the course of his or her employment, the injured worker is entitled to worker's compensation benefits. Some of the benefits include receiving temporary total disability (TTD) benefits if an injured worker cannot return to work. The injured worker will receive 66 2/3% of his or her gross average weekly wage while off of work. Second, the Workers' Compensation Act states that the reasonable and necessary medical expenses are to be paid by the workers' compensation carrier. Third, once you have been released from medical care and allowed to return to work, you could receive compensation for any permanent disability or impairment.
FMLA and the Illinois Worker's Compensation Act are two very different laws. However, they do interact. If an injured worker has to take time off from work as a result of a work related injury, that can be counted as time on FMLA. FMLA is an unpaid leave from work while workers' compensation provides compensation if you are off work under the order of a doctor. If after 12 weeks an injured worker cannot return to work, then the FMLA time has been exhausted. If the injured worker can return to work in a light duty capacity but the employer cannot accommodate them, then the injured worker will still receive TTD benefits but the time off will continue to accumulate under FMLA. If the injured worker is terminated after 12 weeks and still off work and under doctor's care, then workers' compensation will continue to pay benefits. Under FMLA, if the worker is dismissed after 12 weeks there is no avenue to receive compensation. Workers' compensation can provide long term benefits to a worker who is severely injured and permanently disabled as a result of their work related injury; however, FMLA does not provide long term benefits.
While the Family Medical Leave Act and the Illinois Workers' Compensation Act are different laws, they tend to cross paths more often than not. It is important you know and understand the difference between the laws and what your rights are. Consult with a workers' compensation attorney to discuss your rights and what you are entitled to receive. In a difficult economic environment, it is vital for workers to know their rights. In today's economic situation, knowing is surviving.
Contributing author Rafael Guzman is a lawyer with Woodruff Johnson & Palermo Injury Law Offices
