Pennsylvania employers may encounter a variety of employment related issues when managing workers’ compensation claims.  One such issue is the Family and Medical Leave Act (“FMLA”).  In situations where an employee is otherwise FMLA eligible and is missing time from work due to a work-related injury, FMLA issues may arise.

FMLA provides eligible employees of a covered employer the right to take up to 12 weeks of unpaid leave during any 12-month period for one or more of the following reasons: the birth and care of the newborn child of the employee; placement with the employee of a son or daughter for adoption or foster care; care for an immediate family member (a spouse, child, or parent) with a serious health condition; or when the employee is unable to work because of a serious health condition.  For a person to be considered an eligible employee, the individual must have been employed by the employer for at least 12 months and must have worked at least 1250 hours for that employer during the 12 month period preceding the start of the leave.

A serious health condition entitling an employee to FMLA leave is defined as an illness, injury, impairment, or physical or mental condition involving:

‍Inpatient care in a hospital or other medical care facility, including any period of incapacity or subsequent treatment in connection with such inpatient care; or

Continuing treatment by a health care provider.  A serious health condition involving continuing treatment by a health care provider includes:

 -A period of incapacity requiring absence from work, school or other regular daily activities for more than three calendar days that also involves:

            -Treatment two or more times by a health care provider; or

             -Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the provider's supervision, or

-A period of absence to receive multiple treatments either for restorative surgery following an injury or for a condition that would likely result in a period of incapacity of more than three consecutive days in the absence of medical intervention or treatment.

Generally speaking, an employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or of a family member.  If 30 days advanced notice is not possible, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable.  The employee is required to submit documentation and medical certification detailing the request for FMLA leave.  Likewise, the employer is required promptly notify the employee, in writing, of the decision as to whether the request has been approved.

FMLA leave may also be used in one 12 week period, intermittently or on a reduced leave schedule.  In situations where FMLA is used intermittently or as part of a reduced work schedule, a maximum of the equivalent of 12 weeks of leave is permissible.  In the case of intermittent leave or leave on a reduced leave schedule which is medically necessary, an employee shall advise the employer, upon request, of the reasons why the intermittent leave is necessary and of the schedule for treatment, if applicable.  

Situation may arise in workers’ compensation claims, where advance notice of the need for a leave of absence cannot be provided and/or situations where the employer has sufficient information to proactively designate the absence as FMLA qualifying.

FMLA leave and workers’ compensation leave can run concurrently, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.  

As a practical matter, employers should ensure that FMLA-eligible employees are promptly notified that their absence has been designated as an FMLA leave.  It is also recommended that employers use the FMLA forms and procedures for purposes of assessing the employee's eligibility for FMLA leave in situations where there is a concurrent workers’ compensation absence.

FMLA requires unpaid leave, but the law also permits the employer to require the employee to use accrued paid leave (such as vacation or sick leave).  When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

However, when a workers’ compensation absence has been designated, consideration must be given to the employee’s entitlement to temporary total disability benefits to which he or she may be entitled.  Generally speaking, if an employee is receiving temporary total disability benefits, accrued paid leave should not be applied to an employee’s absence.

Additionally, there may be FMLA implications related to an employee’s return to work.  FMLA does not permit an employer to require an employee entitled to FMLA leave to accept a light duty position.  If the employee's serious health condition prevents the employee from performing one or more of the essential functions of his or her regular job, the employee may continue on FMLA leave for up to the 12-week maximum.  

Further, pursuant to a workers’ compensation claim, the employer has the right to obtain an employee’s treating records.   However, FMLA imposes restrictions on the employer's ability to contact the employee's treating physician.  When an employee applies for a leave of absence under the FMLA he can be required to provide a medical certificate stating the date the condition began, its probable duration, diagnosis and a brief statement of the regimen of treatment and the employee's inability to perform his or her essential job functions or work of any kind.  FMLA prohibits the employer from contacting that medical provider directly and obtaining any additional information or questioning the basis for the medical certification.  In addition, under the Workers' Compensation Act the employer can usually correspond with the treating physician; whereas, under FMLA they cannot.

Employers should have clearly defined policies and procedures addressing leaves of absence to ensure consistent administration and application of the policies, a complete understanding by employees and consistent decision making regarding continued employment after the leave of absence is exhausted.  However, to be effective, the policy should extend to all types of absences (not just medical), except as otherwise mandated by law, and should be applied consistently.  Such policies should also address health insurance coverage/COBRA, other benefits (such as paid vacation, sick days or other paid leave time) and reinstatement rights after an extended leave.