If XYZ is an employer with 50 or more employees, it is covered by the federal Family and Medical Leave Act. Both Chris and Casey, depending on a number of eligibility factors (including how long they have been employed by XYZ, how many hours each employee has worked in the prior year and how many employees are located at their regular workplace), may have the right to up to 12 weeks of unpaid leave.
XYZ should make sure that if it is covered by the statute, it has a written policy that addresses FMLA leave, and that it analyzes whether notice or leave might be required under the statute to either Chris or Casey. Even though Chris’s leave is the only one covered by workers’ compensation, both employees may have a right to job-protected leave under the FMLA.
A few important points about FMLA leave:
• XYZ’s FMLA policy could provide that FMLA leave runs concurrently (at the same time) with workers’ compensation leave. Generally, that is a positive for the employer because it can minimize the amount of time an individual employee is out of work. However, it will be up to XYZ to enforce this policy and notify Chris of the policy. A failure to notify the employee about both kinds of leave can result in an extension of the employee’s job protections.
• Although Chris and Casey both may have the kind of injury that would entitle them to FMLA leave (a dislocated shoulder is probably a “serious health condition” under FMLA), either or both of them might already have taken some or all of the leave available for the year. FMLA generally provides for up to 12 weeks of leave in a 12-month period. (FMLA-qualifying leave can be taken not only for the employee’s own serious health condition, but also to care for a family member, such as a parent or child. XYZ should review its records and assess how much job-protected FMLA leave may be available to each employee.)
• It is also important to recognize that FMLA leave can be taken either intermittently (meaning a few hours a day or a couple of days per week), or on a full-time basis. Keeping track of how much leave an employee is using can be tricky, so XYZ should be careful to keep detailed records of how much time off Chris and Casey take.
• If the company is a covered employer and the employee is an eligible employee, FMLA provides a number of job protections, including requiring XYZ to return the employee to the same or equivalent position when the job-protected leave is over. This can become complicated for construction companies if projects are near completion when the employee goes out on leave (whether due to an on-the-job injury or not) and the position is no longer available when the employee’s leave ends.
[Related: What to do if a worker falls]