April 06, 2021

FMLA Clash of the Titans

This case has several lessons to be learned. Actually, you probably already know these rules. The case illustrates how important it is to not forget them!

An employee is injured at work.  You immediately process a workers compensation claim. The employee is out for 11 workdays during which the attending doctor determines the employee’s injury will prevent her from performing one or more of her job duties.

  1. You never give her an FMLA Notice of Eligibility. Strike #1!
  2. You never give her an FMLA Notice of Rights & Responsibilities. Strike #2!
  3. You offer her a light duty job, not an FMLA leave of absence. Strike #3!
  4. Her supervisor fires her when she cannot complete a physical fitness-for-duty test. Strike #4.


There are more but I suspect you get the point. Now, let’s revisit our FMLA basics and share these with your front-line supervisors and managers!

  1. If an employee is absent for more than three consecutive days, that might be an FMLA-qualifying absence. Give the employee the Notice of Eligibility, including if the employee is not eligible and indicate why.
  2. If the employee is eligible, give the employee the Notice of Rights and Responsibilities. Both of these notices must be issued within five (5) business days from the date you have knowledge that an absence might be FMLA qualifying. If you need more information, include the FMLA Medical Certification form to request more information.
  3. An eligible employee who has an FMLA-qualifying absence, has the right to decline light duty and take the FMLA leave of absence. The employee might not continue to receive workers compensation benefits, but the employee has the right to make that choice.
  4. If you are going to count the employee’s absence as FMLA leave, you must give the employee and FMLA Designation Notice within five (5) business days from the date you make that determination. A non-issue in this case since the employer dropped pretty much the entire ball; I just thought I’d throw in this reminder.
  5. The employee has up to 12 workweeks of job-protected leave. If you are going to administer a return-to-work physical exam: (a) you may generally only do so if you gave the employee notice of that requirement in the FMLA Designation Notice and provided a copy of the job description; and (b) use a medical review officer to conduct the exam (not the employee’s supervisor!).

As a Ray Harryhausen fan, I appreciated the court’s summary, “FMLA does not set up a clash of Titans between itself and workers’ compensation. So providing workers’ compensation benefits cannot absolve an employer of all obligations under the FMLA.”

Thirsting for some more FMLA basics?  Check out FiveL Company’s June webcast, “Managing Disability & Leave: Part II – FMLA.”  $25 per person.