Today I received a call from a young lady referred to us by a colleague who practices workers compensation law. She was fired from her job while she was on temporary total disability (TTD) and wanted to know if her employer was allowed to do that? The answer: It depends.
Being on leave due to a work related injury does not necessarily provide job protection. However, if the young lady also qualified for family medical leave under the Family Medical Leave Act (FMLA), then she might have a legal claim against her employer. In order to be qualified for FMLA protection she had to be "eligible" for leave, meaning that she had to have been employed for at least 12 months and worked 1250 hours. Her leave needed to be necessitated by a serious health condition. In this case, the fact that she was on TTD tells me she meets that test.
Employers are prohibited from terminating employees who miss work due to an FMLA qualifying reason. Furthermore, if the employee is able to return to work at or before the expiration of 12 weeks, the employer must restore them to the same or a comparable position.
Employees on workers comp leave should be encouraged to know their FMLA rights. Even after 12 weeks of FMLA, there may be added protection under the Americans with Disabilities Act (ADA). A leave of absence is normally a reasonable accommodation request under the ADA.
Bottom line, if you suffer a work related injury that causes you to be placed off work, don't be naïve. Know your rights under the FMLA and the ADA. If you have questions about whether you are entitled to coverage call or email us at: [email protected]
You can also obtain information about the FMLA from the Department of Labor's website: www.dol.gov
and information about the Americans with Disabilities Act (ADA) from the EEOC website: www.eeoc.gov