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Overlapping laws could lengthen employee absences

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Employers should consider starting the clock on Family Medical Leave Act leave as soon as possible when it is clear a work-related injury is going to require an employee to miss time at work to avoid an unintended extension of leave, human resources experts say.

Workers compensation claims and FMLA, along with the Americans with Disabilities Act and even COBRA, often overlap, said Kathryn Carlson, vice president of human resources management products at Lafayette, Colorado-based HR management solutions company KPA L.L.C., in a webinar last month. When an employee is injured, employers must determine which laws apply, what each law requires and how they intersect, she said.

Employees are eligible for FMLA leave if they have worked for the employer for at least 12 months or at least 1,250 hours during the preceding year. Employers are required to provide FMLA leave if they employ 50 or more people.

“Pretty much anyone with a lost time workers compensation claim will have an FMLA claim concurrent with that,” said Terri Rhodes, chief executive officer of the San Diego-based Disability Management Employers Coalition.

While an employee is on FMLA leave, they cannot be asked to re-certify their medical condition even if an employer has evidence an employee on a workers comp claim is well enough to return to work. In addition, employees on leave should not be allowed do any work at all, including answering emails or calling in to conference calls, because any work completed constitutes a day of work according to FMLA rules, Ms. Carlson said.