Recently I’ve had a couple of Vermont workers’ compensation clients ask me how the FMLA relates to their Vermont workers’ compensation claim. The simplest answer I can give them? It really doesn’t.
How does FMLA relate to workers’ compensation in Vermont?
Let’s say you suffer a pretty serious knee injury at work and are taken out of work by your doctor. If at the time of your injury you worked for a public agency or an employer with 50+ employees, you would most likely be covered by the FMLA and would be entitled to a certain amount of “FMLA leave” — assuming you had worked for that employer for a year or more. So, what’s FMLA leave. Essentially, FMLA leave allows you to miss up to 12 weeks of work while you recover from your injury, without your employer giving your job away to someone else. Although the FMLA does not entitle you to paid leave from work, it prevents you from losing your job during those 12 weeks, and it allows you to continue receiving employer-paid health insurance during that period. Likewise, if you are able to return to work before the 12 weeks of FMLA leave have been exhausted, your employer must return you to the same job. The following brochure has some helpful information about how the FMLA process works: http://www.dol.gov/whd/fmla/
The difference between FMLA and Vermont workers’ compensation is that, if your employer isn’t large enough to qualify you for FMLA leave, then they aren’t required to save your job if you’re taken out of work due to an injury. (The same is true if you’re provided FMLA leave, but you don’t return to work before the 12 weeks is exhausted.) Instead, your employer can immediately fill your position with someone else, and they don’t automatically have to let you back in after you recover. Pursuant to 21 V.S.A. 643b(b), the only requirement is that if you recover from your injury within two years, your employer must reinstate you “in the first available position” which is suitable for you. In other words, your employer is only required to take you back IF they have a position available; if there are no open positions, then they don’t have to take you back. In order to qualify for such reinstatement to an available position, you also must have kept your employer informed of your interest in returning, your recovery from injury, and your mailing address.
To summarize, FMLA leave requires your employer to keep your job and health benefits open for 12 weeks after you’re taken out of work — which is 12 weeks longer than they are required to under workers’ comp.