Q: Last week, one of our long time custodians slipped on a wet floor and cracked her hip. The doctor anticipates that she will be unable to work for six weeks. She’s receiving workers compensation benefits, but today she brought in a request for FMLA leave. Am I required to process this leave request while the employee is still on workers compensation?
A: Yes. An employee is never “on” workers compensation. Rather, the employee must be on an applicable form of leave while she is receiving worker’s compensation benefits.
Worker’s compensation is an insurance program managed by the State of Texas. It provides medical expenses and a portion of lost wages to employees who are injured while on the job. Not all Texas employers provide workers compensation insurance, but Texas public school districts do. Workers compensation is addressed in the Texas Labor Code, which is referenced in policies CRE and DEC. Importantly, worker’s compensation does not dictate the leave applicable when an employee is unable to work due to a job-related injury; rather, it controls whether an employee receives financial benefits during that leave (and the amount of those benefits, if any). Look to policy DEC (LOCAL) for the following clarifying language:
“Note: Worker’s compensation is not a form of leave… An absence due to a work-related injury or illness shall be designated as FMLA leave, temporary disability leave, and/or assault leave, as applicable.”
In the above scenario, since the employee is a non-certified auxiliary worker, she is likely not eligible for temporary disability leave (reserved for full-time educators). Thus, leave under the Family Medical Leave Act will likely be applicable to her situation, in addition to any ancillary type of leave offered by your district and running concurrent with FMLA (e.g., sick leave pools, catastrophic sick leave, etc.) Once readily apparent that the employee suffers from a serious health condition, we advise providing the employee with written notice that she is being placed on Family Medical Leave. This should occur shortly after her work-related injury and initial absence from work. The notice form offered by the Department of Labor contains information regarding FMLA generally, including how long it lasts (12 weeks) and the documentation required by your District to finalize her FMLA leave. You can find it on the DOL’s website at https://www.dol.gov/whd/forms/WH-381.pdf.
Should the employee’s injury require time away from work after all leave has been exhausted, we advise contacting your local school district attorney to discuss next steps. Disability discrimination laws and anti-retaliation statutes could drive decision-making from that point forward. For additional information concerning the workers compensation laws and their interplay with employee leaves, look to your district’s risk management officer or the Texas Department of Insurance’s worker’s compensation site at https://www.tdi.texas.gov/wc/index.html.