Eligible employees who get injured at work and lose time (lost time injury) should be placed on FMLA, thus avoiding “stacking.”
Let me explain. To begin, when an employee gets injured at work, they become eligible for workers’ compensation. Secondly, if the employee loses work time, as a rule of thumb three days or more, this would be considered a “serious health condition” and the employee should be placed on a Family and Medical Leave (remember, to be eligible for FMLA, the company must employ 50 or more employees and the employee must have one or more years of service and worked 1250 hours in the previous 12 months).
Now, what is stacking? Stacking refers to the piling on one type of leave on top of another. In this case, if the employee goes out on workers’ comp with a lost time injury, by designating that time as a FMLA leave, the employee, at some future time, could not refuse a return to work with a light duty job offer by declaring the FMLA leave, at that point.
When the employer declares the leave at the onset, you take better control of the workers’ comp case, begin to exhaust the 12 weeks of FMLA leave eligibility, and avoid stacking, which if not done could result in a longer period of lost time that could include a refusal of light duty by the employee.
Remember, the employer has the right to declare the FMLA leave. Exercise it.
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