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WC vs FMLA Retro Start date California California

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  • WC vs FMLA Retro Start date California California

    I am on WC with Temp Disability Benefits for recent CTS surgery. Given it was a WC issue I myself didn't think about asking for FMLA Leave Nor did my company even though they knew my needed time off for recovery was undetermined. I did not recieve any notice/memo that this was FMLA leave until 5 weeks into my recovery after my doctor gives the company a update of status note I will be out another 6 weeks. Here's the Problem:

    The surgery was on March 14th 2008.
    I didn't recieve notice it's FMLA until April 18th.
    Yet the Start date on the Notice/Memo states March 14th (date of Surgery).
    Can the company retro the start date like that?
    Because they are 5 weeks late in making the determination/notice I was to be place on FMLA Shouldn't my start actually be April 18th? And the 12 week clock starts there?

    Thank you for any help on this.

  • #2
    No. You don't get extra time because of the retroactive designation, as long as you get the full 12 weeks of leave in total.
    http://supct.law.cornell.edu/supct/pdf/00-6029P.ZS
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

    Comment


    • #3
      Originally posted by Pattymd View Post
      No. You don't get extra time because of the retroactive designation, as long as you get the full 12 weeks of leave in total.
      http://supct.law.cornell.edu/supct/pdf/00-6029P.ZS
      Thank you, I can see there the courts view in this particular case, but believe each situation can and is different. In my case I could argue the company is showing predjudice by not notifiying me of my FMLA rights until after they received my 3rd doctors note putting me on 6 more weeks of leave. Now, the company is telling me they are going to "pay out"
      2 weeks of my earned vaction time. A policy I assume I nor the rest of my fellow co-workers know about. (no policy manual exists they make policy as they go)

      Qustion then: Can the company force me to take/use vaction time and pay on top of my Work Comp payments?

      Comment


      • #4
        Depends on the work comp policy. You can call them direct if you like. You're still employed, right? Generally speaking, the employer cannot FORCE the employee to accept paid time off payments while on FMLA although the employer and the employee may agree to do so. What I'm not positive about is what the work comp carrier says about "double-dipping" and to what extent it may (or may not) be allowed.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

        Comment


        • #5
          Yes, I'm still employed, just on WC temp Benefits after surgery with Doc's note. I am at a loss on who to talk too though. I have visited my WC infomation officer and the poor burnt out guy didn't seem to have the answer on double dipping and FMLA. He refered me to my county wage claim office who tells me its a WC/FMLA thing.
          I am at a loss on who to talk to that knows really whats going on.

          Any ideas on how to contact the feds about FMLA ? I mean an actual human.

          Comment


          • #6
            It's not really an FMLA issue. It's strictly a work comp issue. Try contacting the Nevada Work Comp Commission maybe? They should at least be able to tell you whether or not a combination of wage payments and TTD benefits can legally exceed your regular normal wage. If so, then it's back to the policy.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

            Comment


            • #7
              Thank you,I'm in California but I will call the info line and see what they say.
              As far as policy the company makes it up as they go and there is no policy manual, none, nada, not one laying around for view.
              Thank you.

              Comment


              • #8
                Sorry, been responding to multiple Nevada WC threads lately.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                Comment


                • #9
                  Actually, I believe that unless a state law or contract/CBA specifically says otherwise, an employer CAN force the use of paid leave during FMLA.
                  The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                  Comment


                  • #10
                    Originally posted by Pattymd View Post
                    Generally speaking, the employer cannot FORCE the employee to accept paid time off payments while on FMLA although the employer and the employee may agree to do so.
                    That's not accurate. Here is a paragraph from the Department of Labor regarding this precise issue:
                    Worker’s compensation leave may, in fact, run concurrently with unpaid FMLA leave and may count toward an employee’s FMLA leave entitlement, provided the reason for the absence is due to a qualifying “serious health condition” as defined in the FMLA and the implementing Regulation 29 CFR 825.114 (copy enclosed). However, an employee’s receipt of workers’ compensation payments precludes the employee from electing, and prohibits the employer from requiring, substitution of any form of accrued paid leave for any part of the absence covered by such payments.

                    Here is the link to the entire letter.
                    http://www.dol.gov/esa/whd/opinion/F..._19_3_FMLA.htm

                    As a matter of fact, your employer is REQUIRED by law to apply FMLA protections if they know that you had an FMLA qualifying condition.

                    I get what you are saying about not retroactively applying the leave. If you read the ENTIRE text of the case, the Supreme Court says two significant things about retroactively applying leave:
                    1. As long as the employee received full benefit of the FMLA statute, then there is no basis for claim.
                    2. There COULD be a basis for a legal claim, if the employee could show that had they been notified in the beginning, they would have taken different action OTHER THAN taking FMLA leave (think about a person who has a bariatric surgery, maybe they could have tried Weight Watchers or Jenny Craig first).

                    So I ask you, with your employer retroactively applying FMLA:
                    1. Are you not receiving some FMLA-guaranteed protection?
                    2. Given the fact you had CTS surgery, what other action could you have possibly taken IF INDEED the employer HAD notified you of their intent to apply it toward FMLA from the start?

                    Comment


                    • #11
                      Thank you, very good info. I'm just taking a moment to digest and think.
                      I think I will have more questions soon.
                      answers and Ideas to run past you too.

                      Comment


                      • #12
                        1. As long as the employee received full benefit of the FMLA statute, then there is no basis for claim.
                        2. There COULD be a basis for a legal claim, if the employee could show that had they been notified in the beginning, they would have taken different action OTHER THAN taking FMLA leave (think about a person who has a bariatric surgery, maybe they could have tried Weight Watchers or Jenny Craig first).

                        So I ask you, with your employer retroactively applying FMLA:
                        1. Are you not receiving some FMLA-guaranteed protection?
                        2. Given the fact you had CTS surgery, what other action could you have possibly taken IF INDEED the employer HAD notified you of their intent to apply it toward FMLA from the start?[/QUOTE]

                        Ok here we go. My attempt to answer question 1:
                        I did not receive a FMLA-guaranteed protection when the day I notified my manager and HR manager of my scheduled CTS surgery months before and the company did not notify me of there intent to apply FMLA within the required 2 days (business days).
                        Question 2:
                        Yes, I would have taken a different course of action. Example: exhausted other forms of therapy and Non-surgical options which did not require the use of FMLA before using the last resort of surgery.

                        Comment


                        • #13
                          Originally posted by Milosham View Post
                          Ok here we go. My attempt to answer question 1:
                          I did not receive a FMLA-guaranteed protection when the day I notified my manager and HR manager of my scheduled CTS surgery months before and the company did not notify me of there intent to apply FMLA within the required 2 days (business days).
                          Question 2:
                          Yes, I would have taken a different course of action. Example: exhausted other forms of therapy and Non-surgical options which did not require the use of FMLA before using the last resort of surgery.
                          Issue #1:
                          I realize that you perceive that you were wronged by the company retroactivly applying the leave. I would also be a bit irritated. However, the law COMMANDS a company to apply FMLA leave when they know an FMLA-qualifying event has occurred. When the law says "protections," it does not mean notification. Protections means things like restoration to your same or equivalent position upon return, continuance of health insurance benefits, up to 12 weeks of job-protected leave, etc. The Department of Labor generally will not pursue compliance actions in instances where the employee has clearly taken FMLA leave and the employer has failed to designate the leave as such.

                          Given the fact that the law commands your company to count it as FMLA, you clearly received leave, and the DOL will not pursue compliance, I REALLY THINK YOU ARE BEATING A DEAD HORSE ON THIS ISSUE.....unless there is some real "protection" that you have not received as a result of their failure to properly designate the leave.

                          Issue #2:
                          You might very well have a legitimate gripe here. But from my end, let me be VERY FRANK with you. I have been in HR for all of my professional career, and I am downright shocked that a WC carrier approved a surgical procedure for CTS prior to utilizing other forms of therapies. That is UNHEARD OF. Nonetheless, that is not your question, and I will stick to what is.

                          If I were you, I would contact your HR department, if you have one, or whomever has made this communication to them and tell them that you have been doing some research. I would tell them that you are concerned about running out of FMLA leave because you were not initially informed this surgery was being counted as such. I would also make mention of having taken a very different course of action.

                          Comment


                          • #14
                            Originally posted by bears00 View Post
                            Issue #1:
                            Issue #2:
                            You might very well have a legitimate gripe here. But from my end, let me be VERY FRANK with you. I have been in HR for all of my professional career, and I am downright shocked that a WC carrier approved a surgical procedure for CTS prior to utilizing other forms of therapies. That is UNHEARD OF. Nonetheless, that is not your question, and I will stick to what is.

                            If I were you, I would contact your HR department, if you have one, or whomever has made this communication to them and tell them that you have been doing some research. I would tell them that you are concerned about running out of FMLA leave because you were not initially informed this surgery was being counted as such. I would also make mention of having taken a very different course of action.
                            Thank you. The HORSE is dead for #1. I will try #2 suggestion and see what happens.
                            But I am still a little vague on how the company can pay out all of my vacation on top of my WC TD payments given the fact that I have substained an injury doing working for the company and after all is said and done I have no vacation left to take for the rest of the year. Just does not seem fair.
                            Then for the topper the WC carrier finds out and wants its money back because I'm seen as a "double dipper" ,not of my doing, Just doesn't make sense Why can't the choice of unpaid leave vs paid be left to the employee?
                            Again thanks, you have been very helpful. I just want whats fair.

                            Comment


                            • #15
                              Originally posted by Milosham View Post
                              Thank you. The HORSE is dead for #1. I will try #2 suggestion and see what happens.
                              But I am still a little vague on how the company can pay out all of my vacation on top of my WC TD payments given the fact that I have substained an injury doing working for the company and after all is said and done I have no vacation left to take for the rest of the year. Just does not seem fair.
                              Then for the topper the WC carrier finds out and wants its money back because I'm seen as a "double dipper" ,not of my doing, Just doesn't make sense Why can't the choice of unpaid leave vs paid be left to the employee?
                              Again thanks, you have been very helpful. I just want whats fair.
                              Once upon a time, there was a little girl named Bear (my youngest daughter). She broke her arm because she fell off the swingset. We see the triage nurse, where she repeats her story for the third time, and then again for the ER doctor for the fourth time. The next week, we see the orthopaedic surgeon, where she tells him that she was trying to TRAPEZE TO THE TOP OF THE FREAKIN' house!!!!!

                              You have just TRAPEZED TO THE TOP OF THE FREAKIN' HOUSE!!!

                              You cannot double dip. If you will see the original link that I posted, that Department of Labor opinion letter also addresses that very subject.

                              Comment

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