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Beware offering FMLA instead of workers’ comp

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in FMLA Guidelines,Human Resources

Some Texas employers try to discourage employees from taking workers’ compensation leave when they suffer an injury. Instead, they encourage employees to use FMLA and accrued vacation and other leave.

That lets them then terminate the employee after the leave expires instead of keeping him on indefinite workers’ comp leave. And taking paid leave may sometimes benefit the employee, since the payments are higher than under the workers’ compensation system.

Always make sure employees volunteer to make that choice. Don’t choose for the em­­ployee and then terminate him once the leave expires. He may view that as retaliation for seeking workers’ compensation benefits—and win a large jury award.

Recent case: Jorge severed the tendons in one hand at work and applied for workers’ ­compensation leave. His employer suggested he take FMLA and vacation leave in­­stead, but he refused.

Somehow, he was placed on FMLA leave anyway. When his 12 weeks were up, he was fired under a policy that required termination if the employee didn’t return to work with a clearance.

Jorge sued, and a jury concluded he had been terminated in retaliation for insisting on workers’ compensation benefits. It awarded him over $100,000 in damages.

The employer appealed, arguing that it routinely terminated all employees who didn’t return from vacation and FMLA leave. Complicating the case was a company rule that gave employees the right to provide a clearance-to-work note within 15 days of returning. Jorge wasn’t allowed to use the grace period.

The appeals court ruled a jury could view that as evidence that might prove Jorge was punished for insisting on workers’ comp benefits. (Kingsaire v. Melendez, No. 08-11-00372, Texas Court of Appeals, 8th District, 2013)

Final note: The employer might have won had it provided Jorge with the 15-day grace period.

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