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Workers’ comp leave doesn’t stop ‘FMLA clock’

by on
in Employment Law,FMLA Guidelines,Human Resources

Q. An employee took FMLA leave Sept. 1 due to job stress. In October, she had an operation for carpal tunnel syndrome. Workers' comp ruled that her absence was work-related and it dated her workers' comp claim back to Sept. 3. So, they're now saying that her FMLA leave won't start until she is officially released from workers' comp. Do we need to keep a job open for her indefinitely? —F.W., Nevada

A. No. Just because an employee is receiving workers' comp benefits doesn't mean that you shouldn't be counting that time against her allotted leave under FMLA. This employee's time is almost certainly FMLA-qualifying. But when her 12 weeks of FMLA leave expire, you shouldn't “automatically” terminate her. Nor are you required to hold her job open indefinitely.

Under the ADA, you must provide time off as a reasonable accommodation. That leave must continue until you can establish that continuing to offer the leave would create an “undue hardship” on your organization. Determining whether an undue hardship exists hinges on the employee's position, your organization's size, past practice and your ability to temporarily replace the employee. Ultimately, this means that, in some cases, a 12-week leave is appropriate, while a leave beyond a full year may be required in other cases.

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