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Critical for employers to run FMLA benefits concurrently with workers comp

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The Texas Supreme Court's recent ruling in Kingsaire Inc. d/b/a Kings Aire Inc. v. Jorge Melendez highlights the importance of employers running federal Family and Medical Leave Act benefits concurrently with workers compensation.

Mr. Melendez, who worked for El Paso, Texas-based heating, ventilation and air-conditioning company Kings Aire, filed a workers comp claim after a light fixture fell on his wrist in July 2009, cutting two tendons and the median nerve, court records show.

Kings Aire told him he would be placed on FMLA leave, which retroactively began the day after he was injured, during his workers comp leave, according to records.

While workers comp covers medical care and wage replacement, it doesn't generally provide job protection, sources said. Meanwhile, FMLA provides eligible employees, such as someone with a serious health condition who's unable to perform his or her job, with up to 12 weeks per year of unpaid, job-protected leave.

Employers who fail to provide FMLA protections, even to employees who are receiving workers comp, risk violating federal law, Darlene Clabault, senior editor of human resources for J. J. Keller & Associates Inc. in Neenah, Wisconsin, said in an email.

Most employers run FMLA and workers comp simultaneously to stay in compliance and limit the amount of time injured employees can be away from work, Carla O'Sullivan, education program manager at the Disability Management Employer Coalition in San Francisco, said in an email. In addition to controlling costs associated with “not having the more experienced worker on the job … there is also a reduced burden on remaining employees to pick up the extra workload” with a 12-week leave limit.

At the end of Mr. Melendez's leave, he had still not been cleared to return to work, and his employment was terminated, records show. He sued Kings Aire for wrongfully discharging him in retaliation for filing a workers comp claim in good faith.

The Texas Supreme Court ruled last week that Kings Aire terminated Mr. Melendez pursuant to its reasonable and uniformly enforced leave policy.

Employers that create “more generous” leave policies need to understand that even if injured employees return to work under a workers comp program, they still have 12 weeks to take for other potential FMLA absences, Ms. O'Sullivan said.

Margaret Spence, president and CEO of Douglas Claims & Risk Consultants Inc. in West Palm Beach, Florida, said she has seen cases where an employer tried to terminate an injured worker's employment because they had not returned to work. But the injured worker was able to maintain their employment for another 12 weeks because the employer had not issued proper notification of the worker's FMLA rights, nor filed paperwork to run FMLA leave during the employee's recovery from a work injury.