Check union contract when tallying FMLA leave, workers’ comp absenteeism

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in Employment Law,FMLA Guidelines,Human Resources

Many union contracts specifically allow employers to terminate employees who are out on workers’ compensation for extended periods of time.

Of course, injured employees also use up their allotment of FMLA leave while on workers’ compensation leave. The question then becomes whether employers can count the FMLA absences toward the number of days the employee is absent before termination.

Recent case: Ricky Thomas hurt his back at work and took 12 weeks of FMLA leave while collecting workers’ compensation. He was still unable to work after his FMLA leave expired. The union contract included a provision that allowed the employer to terminate employees who missed more than a year of work.

As soon as Thomas had missed a year—including the time he had spent on FMLA leave—he was terminated.

Thomas sued, alleging the company had broken the union contract. He argued that the employee handbook said FMLA leave shouldn’t be counted as an absence. Therefore, he argued, his employer should have allowed him to be out for a year plus 12 weeks.

The court agreed, reasoning that under the circumstances, the FMLA time off should not have been counted. (Fort Worth Transportation Authority v. Thomas, No. 2:08-236, Court of Appeals of Texas, 2nd District, 2009)

Final note: If your union contract is vague on counting FMLA time toward extended time off, discuss the matter with your attorney before the next round of collective bargaining.

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