The Answer really Depends on Whether You have exhausted your work Injury benefits under your Employer’s Work Injury Insurance and how serious your work injury is.
If you been injured on the job and you have an open workers’ compensation case where you are receiving, or could be entitled to receive, work injury benefits including medical and wage benefits, why would you go on leave and abandon any right to continue to get paid by your employer?
In a work injury case, when an injured employee elects to go on leave under FMLA, it really only saves the employer and their work injury insurance the responsibility of paying that employee wages while they are receiving treatment for their injury. In certain work injury cases, like Texas Non-Subscriber cases, your employer’s insurance is required to pay you supplemental wages if an approved doctor places you on restrictions that cannot be accommodated by your employer. In other words, when your doctor determines that you are too injured to work, the insurance is supposed to pay you while you are out recovering from your injuries. We all know, most insurance doctors hardly ever take injured workers off of work completely.
FMLA for Work Injury Cases
Under FMLA (FAMILY MEDICAL LEAVE ACT), eligible employees can take unpaid, job-protected leave for specific reason including family and medical reasons. Employees that have been injured on the job are entitled to 12 weeks of leave in a 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her job. Essentially, if you are not able to perform your job duties because of your work injury, you could qualify to take leave under FMLA for 12 weeks. Remember, the leave is unpaid but, your job would be protected and certain insurance could remain in place for you.
The truth is, the system is not set up to help injured workers. Rather, it is set up to save costs to employers and their insurance companies. Therefore, employers very often push for injured employees to go on FMLA because of their own self interests. On the flipside, if you are treating under their insurance plan for a work injury, the doctors that you are required to see hesitate to give restrictions that would allow you to go home to recover from your injuries and still get paid. They are more likely to place an injured employee on restrictions so that they have to continue to go to work and do what they can do. Again, what typically happens here is that the employer will see that the worker cannot perform his or her job duties and will start to limit how many hours they give them on the schedule or, they start pushing for employees to go on FMLA, placing the worker between a rock and a hard place.
So,… Do I Go on leave under FMLA?
Unfortunately, there is no definite answer. What I would say is that you start by asking yourself if you have a right to get paid because you got injured while working for your employer. If their insurance provides wage payments, then you need to be cautious of losing out on these benefits simply because you go on leave under FMLA.
All is not lost! If your injury resulted from your employer’s failure to provide a safe workplace because of the lack of training, equipment, manpower, or, because they adopted an unsafe work practice, you could have a good negligence case against your employer. Neither your employer, their insurance, nor their doctors are going to do anything to protect your rights! You will need to act promptly. If you are forced to leave your job because you can’t physically do your job, you could pursue that claim in your work injury case.
Even after understanding the intent behind your employer pushing you to go on FMLA, you will need to be sure you consult with a Texas work injury attorney that can provide with the best way to approach your case.
Our firm handles work injury cases of all types. We are ready to discuss your work injury case when you are! Call Sandoval Law Firm at (346) 347-7777 and put Sandoval to work for you!
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