What happens when an employee needs family leave after a work injury?

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Taking leave to care for a family member can be complicated by a work injury

Work injuries create all sorts of unexpected complications for injured worker. One complication is what happens when an injured employee on alternate or light duty needs to take time away from work for a family emergency.

If the employee has been employed with the same employer for a year, worked more than 1250 hours during that year and the employer has more than 50 employees within a 75 mile radius, then the employee could take leave for up to 12 weeks under the Family Medical Leave Act without worrying about losing their job.

If the employee or employer is not covered by the Family Medical Leave Act, then things can get sticky for an injured worker as the employer is not obligated to provide unpaid family leave. In Nebraska, an employer is still obligated to pay temporary disability regardless of whether an employee is fired or quit.  But employers, especially ones that are self-insured for workers’ compensation, ignore the law which means that an employee has to wait for a hearing to get temporary disability benefits paid. There may also be a question as to whether an employer’s ability to accommodate a work injury but for a termination or quit should factor into how much an employee should get paid for temporary disability.

Although I haven’t encountered this issue, I suspect an FMLA eligibile employee who took family leave while on light duty could have an employer deny payment of temporary disability. Ultimately I believe a court would award temporary disability in that circumstance. In other words, the analysis for the purpsoses of workers’ compensation benefits would be the same even if the new employee has less job protections for taking family leave.

Short-term employees are already more vulnerable to injuries. Short-term employees also targeted for termination under policies that fire new employees for having “lost time” or “recordable” accidents. While you can, and I have, argued successfully those types of policies retaliate against new workers who get hurt at work, you can’t make the same argument about new employees who get fired for taking family leave. The law excludes new employees from the protections of the Family Medical Leave Act. The law allows employees to discriminate against new employees who need family leave. That’s not to say than a new employee who gets fired after taking leave can’t even have a wrongful termination case, but there would have to evidence of some unlawful motives for an employee to bring that case.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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