Do You Have to Use FMLA When You’re on Workers’ Comp?

Whether you are supporting a family or yourself, it’s important to have a steady, reliable job. Suffering an injury or illness that’s severe enough to make it difficult or impossible for you to work can threaten your income and overall life stability.

Thankfully, both the federal government and the state of Ohio have safety nets for workers whose health prevents them from returning to work—and both safety nets provide different benefits and can intersect in different ways.

What Is FMLA?

The federal government created the Family and Medical Leave Act (FMLA) in 1993. This law allows eligible employees to take up to 12 weeks of protected leave from their jobs during any 12-month period for things such as:

• Recovering from a serious illness or injury
• Taking care of seriously ill family members
• Caring for a newborn baby or infant

FMLA is considered unpaid leave. That means workers don’t receive their paychecks while they are using it. However, FMLA guarantees that workers won’t be fired or demoted while they are away from their workplaces. That means that while workers who use FMLA temporarily lose their income, they don’t lose their jobs.

To be eligible for FMLA, workers must first be employed for a minimum of 12 months at a business that is required to participate. Not all businesses are required to provide FMLA leave to their employees. For example, businesses with less than 50 employees are not required to do so.

What Is Workers’ Comp?

Workers’ compensation is a form of insurance that all employers in Ohio with one or more employees are required to purchase. The insurance provides injured or sick workers with replacement income when work-related injuries or illnesses make it extremely difficult or impossible to do their jobs. Unlike FMLA, workers’ compensation is handled by the state, not the federal government.

In Ohio, the Ohio Bureau of Workers’ Compensation (BWC) reviews all workers’ compensation claims. The BWC has strict criteria for approving claims, but when workers who are out of work for at least seven days due to their work-related injuries or illnesses get the green light from this agency, their employers are required to pay them two-thirds of their pre-injury wages while they recover.

Unlike FMLA, workers’ compensation benefits can be applied for and received even on the first day of employment if an injury or illness happens while working. There’s also no time limit for how long the benefits may be collected.

How Do the Two Programs Intersect?

Because workers’ compensation only covers on-the-job injuries, it doesn’t play a role in FMLA claims that involve taking care of sick family members or caring for newborn babies. However, FMLA also covers injured workers, which means the two programs may intersect.

One of the most common ways the programs intersect is when employers demand that injured or sick workers use up all their FMLA to recover from their injuries or illnesses before applying for workers’ compensation benefits. However, because workers’ compensation also protects injured or sick workers from being fired, there may be no benefit to using FMLA if you are eligible for workers’ compensation.

Unfortunately, employers may coerce workers into using FMLA while out on workers’ compensation, or they may argue that FMLA is a better option for them than applying for workers’ compensation benefits. They also may claim that using FMLA is a requirement before being able to receive workers’ compensation. Because of this false and manipulative dissemination of information, there are persistent misconceptions about how to use both programs.

Common Misconceptions About Using Both Programs

There are several common misconceptions surrounding FMLA and workers' compensation. One prevalent misconception is the belief that employees must use FMLA leave before filing for workers' compensation benefits, or vice versa. You might qualify for both FMLA and workers' compensation concurrently, depending on your specific situation.

Another misconception is the idea that if you’re eligible for FMLA, you’re eligible for workers’ compensation, or vice versa. It’s also not true that if you’re using one program, you shouldn’t worry about the other. These are entirely separate programs with distinct eligibility requirements and purposes, and both could be crucial to protecting your employment.

Talking to an experienced attorney who specializes in workers’ compensation is critical to understanding how to move forward.

Steps to Take When Injured at Work

Whether you plan to use FMLA or workers’ compensation benefits, taking immediate action and properly documenting a work-related injury or illness is critical. These steps can strengthen your claims and provide valuable evidence to support your case.

Immediate Actions

Immediately after a work-related injury, consider taking these steps:

• Report the injury to your employer, following their established protocols, and get the incident documented.
• Seek medical attention, even if the injury seems minor, to create an official record and receive proper treatment.
• Gather information about the incident, including the time, location, circumstances, and any witnesses.
• Take photos of the injury and the site where the incident occurred, if possible.
• Notify your employer of your intent to file a workers' compensation claim and request the necessary forms.

Documentation Tips

Make sure to thoroughly document your injury throughout this process:

• Keep a detailed journal or log of all events, including the date, time, and details of the injury, medical appointments, communication with your employer, and any missed work.
• Obtain copies of all relevant medical records, doctor's notes, test results, and treatment plans.
• Save all communication with your employer, their insurance company, and any other parties involved, including emails, letters, and call logs.
• Document any witnesses to the injury or incident, including their names and contact information.
• Take photos or videos of the injury, the work area where the incident occurred, and any equipment or conditions that may have contributed to the injury.
• Keep track of expenses related to the injury, such as medical bills, transportation costs, and any out-of-pocket expenses.

Proper documentation can help support your claims and ensure you receive the benefits and protections you are entitled to under FMLA and workers' compensation laws.

Legal Recourse and Advocacy

If you face issues related to FMLA or workers' compensation, such as being denied benefits or facing retaliation, it's important to know you have legal rights. These programs provide protections, including:

• The right to take job-protected leave
• The right to be free from retaliation

However, navigating these programs can be complex, which is where legal advocacy and support can prove invaluable. An experienced employment law or workers' compensation attorney can help ensure you receive benefits and fair treatment. They can assist with appeals, negotiations, and other legal proceedings. If you face retaliation or discrimination, a lawyer can also help pursue reinstatement, back pay, or other damages.

How an Experienced Lawyer Can Help You Handle FMLA and Workers’ Comp

An experienced Ohio workers’ compensation lawyer can play a crucial role in helping you navigate the complexity of the intersection of FMLA and workers' compensation. When you get a trustworthy and dedicated attorney on your side, you’ll get peace of mind knowing they’re working hard for you by:

• Interpreting Legislation, Rules, and Requirements: FMLA and workers' compensation are often confusing programs. Your lawyer can interpret the laws, regulations, and requirements surrounding them, ensuring that you understand your rights and your employer is in compliance with both programs.
• Filing and Documentation: Your lawyer can assist in accurately preparing and filing the necessary paperwork for your FMLA leave or workers' compensation claim. Proper documentation is key to avoiding disputes or denials.
• Negotiating With Employers or Insurers: Your lawyer can communicate and negotiate with your employer or the workers’ compensation insurance company on your behalf. This is important when there are disputes regarding the validity of your claim.
• Handling Denials and Appeals: In cases where your FMLA leave is unfairly denied or your workers' compensation claim is disputed, your lawyer can guide you through the appeals process, including representing you in hearings or court proceedings if necessary.
• Ensuring Non-Retaliation and Fair Treatment: Your lawyer can help safeguard you from retaliation by your employer for filing for FMLA or workers' compensation. It’s their goal to ensure your rights are protected throughout the process.

We’ll Help You Navigate This Common Scenario

At Nurenberg, Paris, Heller & McCarthy, we know that it can be difficult to decide what to do after an injury or illness puts you out of work.

Our workers’ compensation lawyers want to help you make the right decisions during this difficult time, and we’ll do so by collecting all the information related to what happened and creating a path forward for you and your loved ones.

Contact us today for a free consultation. We’ve got nearly an entire century of experience fighting for the rights of injured people throughout Ohio, and we know how to get you the results you deserve.

Originally published October 19, 2020.

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