Can My Employer Make Me Use FMLA While I Am Off Work for an Alabama Workers Compensation Injury—and Can I Be Fired When It Runs Out?

Can My Employer Make Me Use FMLA While I Am Off Work for an Alabama Workers Compensation Injury—and Can I Be Fired When It Runs Out?

One question we hear surprisingly often from injured Alabama workers is: “Why is my employer putting me on FMLA? I didn’t ask for FMLA. I’m off work because I got hurt on the job.”

The question is understandable.

The employee may already be receiving workers’ compensation benefits. The authorized treating physician may have taken the employee completely off work. The employer and workers’ compensation insurance carrier may already know exactly why the employee is absent.

Then the employee receives paperwork from Human Resources stating that the absence is also being designated as leave under the Family and Medical Leave Act (FMLA).

The employee’s immediate reaction is often “Can they do that?”  In many circumstances, the answer is yes.

An absence caused by a workers’ compensation injury can also qualify as FMLA leave, and the two types of leave can run at the same time.  But that raises an even more important question for an injured worker:

What happens when the FMLA leave runs out and the workers’ compensation doctor still has me off work? Can my employer fire me then?

That is where FMLA, Alabama workers’ compensation law, and Alabama’s retaliatory discharge law begin to intersect.

Workers’ Compensation and FMLA Are Two Different Laws

Workers’ compensation and FMLA serve different purposes.

Alabama workers’ compensation law may provide medical treatment and disability benefits when an employee suffers a compensable workplace injury.

FMLA is a federal law providing eligible employees of covered employers with up to 12 workweeks of job-protected leave during the applicable 12-month period for certain qualifying family and medical reasons, including a serious health condition that makes the employee unable to perform the functions of the employee’s position.

FMLA generally does not provide wage-replacement benefits, workers’ compensation may.  That means an injured Alabama worker can potentially be: receiving workers’ compensation temporary total disability benefits while simultaneously using FMLA-protected leave.

The two laws can also apply to the same absence.

Can My Employer Count My Workers’ Compensation Leave as FMLA Leave?

Yes, if the absence qualifies under both laws and the applicable FMLA requirements are satisfied.

Federal regulations specifically recognize that a workers’ compensation absence caused by a serious health condition may qualify as FMLA leave and that the two types of leave may run concurrently.  In practical terms, that means an employee does not necessarily receive workers’ compensation leave first, followed by another 12 weeks of FMLA leave later.  The clocks can run at the same time.

This is one of the most common sources of confusion we see.  An injured worker may think: “I never asked them to use my FMLA,” but the fact that the employee did not specifically ask for “FMLA” does not necessarily prevent the employer from designating qualifying leave as FMLA leave.

Do I Have to Ask for FMLA?

Not necessarily.

An employee generally does not have to know the FMLA regulations or specifically say “I am requesting FMLA leave.”

The employee does, however, have to provide enough information for the employer to understand that the leave may qualify for FMLA protection.  In a workers’ compensation case, that may not be particularly mysterious.

For example, suppose the employer knows that:

• the employee was injured at work;
• the employee underwent surgery;
• the authorized physician has taken the employee completely off work; and
• the employee is expected to remain off work for several weeks.

The employer may already possess information indicating that the absence potentially qualifies for FMLA protection.

Federal law places responsibilities on the employer concerning FMLA eligibility, rights and responsibilities, and designation notices once the employer has sufficient information to determine that FMLA may apply.  So, an employee should not assume that FMLA cannot begin simply because the employee never filled out a form saying, “I want FMLA.”

Why Would My Employer Want FMLA and Workers’ Compensation to Run at the Same Time?

There is a legitimate administrative reason.  FMLA allows qualifying leave to be designated as FMLA leave. Running qualifying workers’ compensation and FMLA leave concurrently prevents an employee from automatically stacking the two leave periods one after another.

But there is also a practical consequence that injured workers should understand: The 12 weeks of FMLA protection may expire long before a seriously injured worker reaches maximum medical improvement or is physically capable of returning to work.

That situation is not unusual in workers’ compensation cases.

A worker may undergo surgery and remain completely off work for months.

The workers’ compensation claim continues.

Medical treatment continues.

Temporary total disability benefits may continue.

But the employee’s available FMLA leave may have expired.

In my years representing injured Alabama workers, I have seen FMLA become increasingly intertwined with workers’ compensation claims. Years ago, we did not encounter this issue with nearly the frequency we do today. Now it is common for an injured worker to call and ask why the employer is “forcing” the worker to use FMLA while the workers’ compensation doctor already has the worker off work.

The important thing is to understand what the designation means—and what it does not mean.

Does FMLA Protect My Job?

For an eligible employee, one of FMLA’s most important protections is the right to job-protected leave.  Generally, an employee returning from qualifying FMLA leave is entitled to restoration to the same position the employee held when leave began or to an equivalent position, subject to the requirements and exceptions of the Act.

That protection can be extremely valuable to an injured worker-but FMLA leave is not unlimited.

For most qualifying circumstances relevant here, the statutory entitlement is generally up to 12 workweeks during a 12-month period, and that creates the question that concerns us in a retaliatory discharge case.

What Happens If My 12 Weeks Run Out and My Workers’ Compensation Doctor Still Has Me Off Work?

The expiration of available FMLA leave can mean that the employee no longer has the same federal FMLA job-restoration protection, but this is where an important distinction must be made: The expiration of FMLA leave does not give an employer a free pass to fire an employee because the employee pursued workers’ compensation benefits.

Those are separate legal questions.

Alabama Code § 25-5-11.1 provides that an employee may not be terminated “solely because” the employee instituted or maintained an action to recover workers’ compensation benefits.

So, suppose an employee suffers a serious workplace injury.  The employee has surgery.

The doctor takes the employee completely off work.  The employer designates the absence as FMLA leave.

Twelve weeks later, the employee remains under active medical treatment and is still unable to return to work.  The employer then terminates the employee.

Does that automatically establish retaliatory discharge?

No.

But does the fact that FMLA has expired automatically protect the employer from a retaliatory discharge claim?

No.

We still have to determine why the employee was actually fired.

Recommended Reading: Can My Employer Fire Me While I Am Off Work Recovering From an Alabama Workers’ Compensation Injury?

“Your FMLA Ran Out” May Not Be the End of the Inquiry

Suppose the employer says “We terminated you because your 12 weeks of FMLA expired.”

That explanation deserves closer examination.  We may want to know:

• Did the employer have a separate medical-leave policy?
• How long did that policy allow an employee to remain off work?
• Did termination automatically occur when FMLA expired?
• Was the policy consistently enforced?
• Were employees with non-work-related illnesses treated the same way?
• Had other employees been allowed additional leave after FMLA expired?
• Did management have discretion to extend leave?
• Was the employee actually replaced before the FMLA period expired?
• What was being said internally about the employee’s workers’ compensation claim?
• Who made the termination decision?
• When was that decision actually made?

These questions can become important under the Alabama Supreme Court’s framework for proving retaliatory discharge.

In Alabama Power Co. v. Aldridge, the Court identified circumstantial evidence that can support a retaliatory discharge claim, including failure to follow established company policy, discriminatory treatment of similarly situated employees, negative attitudes toward the injured employee, and evidence that the employer’s stated reason for termination was false.

The words “FMLA exhausted” on a termination letter do not necessarily answer those questions.

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun

What If I Really Cannot Work When FMLA Expires?

That fact matters, but it does not necessarily eliminate a retaliatory discharge claim.

In Bleier v. Wellington Sears Co., 757 So. 2d 1163 (Ala. 2000), the Alabama Supreme Court held that an employee’s being “willing and able” to return to work is not an element of the employee’s prima facie retaliatory discharge case.  At the same time, Bleier recognized that an employee’s physical ability to perform the job remains relevant.

The retaliatory discharge statute does not itself require an employer to create a special job for an injured employee or specially accommodate the employee, and an employee who is physically unable to work generally cannot recover lost wages for a period during which the employee could not have earned those wages.

But inability to work and retaliatory motive are still different questions.

An employee can be unable to work and an employer can nevertheless have an unlawful retaliatory reason for terminating that employee.

Recommended Reading: Do I Have to Be Able to Return to Work to Bring an Alabama Retaliatory Discharge Claim?

FMLA and Light-Duty Work Create an Especially Interesting Problem

There is another issue that can become very confusing in a workers’ compensation case.

Suppose the workers’ compensation doctor releases the employee to light-duty work before the employee’s FMLA leave has expired.  The employer offers a light-duty position.

Does the employee have to accept it?

Under the FMLA itself, an employee generally is not required to accept a light-duty position instead of continuing available FMLA leave. Federal guidance recognizes that an employee may decline the light-duty position and continue on FMLA-protected leave until the employee can return to the same or an equivalent position or until the employee’s FMLA entitlement is exhausted.

But that does not mean refusing light duty has no consequences under Alabama workers’ compensation law.  Alabama’s Workers’ Compensation Act contains separate provisions concerning the refusal of suitable employment.

So, the same decision can potentially produce very different consequences under two different laws:

FMLA may allow the employee to remain on protected leave rather than accept light duty, while Alabama workers’ compensation law may affect the employee’s right to certain compensation benefits if suitable employment is unjustifiably refused.

This is precisely why an injured employee should be very careful about simply refusing a light-duty offer without understanding what has actually been offered and how the different laws interact.

Recommended Reading: Can My Employer Fire Me for Refusing Light-Duty Work After an Alabama Workers’ Compensation Injury?

FMLA Retaliation and Alabama Workers’ Compensation Retaliatory Discharge Are Also Different Claims

There is another distinction worth making.  Federal law prohibits an employer from interfering with an employee’s FMLA rights and from retaliating against an employee for exercising rights protected by the FMLA.

Alabama law separately prohibits an employer from terminating an employee solely because the employee pursued workers’ compensation benefits.

Those claims are not interchangeable.

For example, an employee might contend that an employer took action because the employee exercised FMLA rights.  Another employee might contend that the employer used the expiration of FMLA as a convenient opportunity or stated reason to terminate the employee because of the workers’ compensation claim.

Those are different legal theories, even though the same termination may require examination under both laws.

For our purposes in an Alabama retaliatory discharge case, the central question remains: What was the employer’s real reason for terminating the employee?

Do Not Assume That “FMLA Exhausted” Means You Have No Rights

This is probably the most important practical lesson.

An injured employee receives a letter stating: “Your FMLA leave has been exhausted. Your employment is terminated.” The employee understandably assumes there is nothing that can be done.

Sometimes the employer may have a legitimate, consistently applied reason for ending the employment relationship, but sometimes the surrounding facts deserve much closer examination.

A lawyer evaluating a possible retaliatory discharge claim may want to examine the FMLA paperwork, workers’ compensation records, medical restrictions, employee handbook, leave policies, attendance records, termination documents, emails and texts, and the treatment of other employees.

The label the employer places on the termination does not necessarily determine the legal result.

Recommended Reading: What Evidence Should I Save If I Think I Was Fired Because of My Alabama Workers’ Compensation Claim?

The Bottom Line

Yes, an employer can generally designate an absence caused by a workers’ compensation injury as FMLA leave when the absence qualifies under both laws and the applicable FMLA requirements have been satisfied.

That means workers’ compensation leave and FMLA leave can run at the same time.

It also means an injured worker’s available FMLA leave can expire while the worker is still receiving workers’ compensation benefits and remains medically unable to return to work, but the expiration of FMLA and the right to retaliate are not the same thing.

The end of FMLA protection does not erase Ala. Code § 25-5-11.1.

If an employer terminates an injured worker after FMLA expires, we still may need to ask:

Why was this employee actually terminated?

Was the employer following an established leave policy?

Was that policy consistently enforced?

Were other employees given additional leave?

When was the termination decision made?

What did the decision-makers know about the workers’ compensation claim?

And was “FMLA exhaustion” the real reason for the termination—or merely the reason given for it?

Those questions can make the difference between a lawful termination and a potential Alabama retaliatory discharge claim.

If you suffered an Alabama job injury and were terminated after being placed on FMLA or after your FMLA leave expired, don’t hesitate to contact and speak with one of the experienced Alabama Workers Compensation and Social Security Disability attorneys at Powell and Denny today for a free consultation. Appointments are available in person, or virtually via Zoom if more convenient.  Powell and Denny would appreciate the opportunity to help.  And remember, there is no fee unless you win.

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