Accidents happen, even when employers take reasonable steps to keep their employees safe on the job. That’s why knowing what to do and what not do after a work-related injury is important because it will save the employer a lot of frustration and expense.
At NJBIA’s seminar “Workers Compensation from Soup to Nuts” on Thursday employers learned the ins and outs of workers compensation insurance, how to reduce the frequency of claims by creating a safer workplace, and how to navigate the requirements of the various federal and state laws governing a leave of absence for an injured employee.
Kathleen Burghardt, Esq., the administrator and supervising attorney of NJM Insurance Group’s Worker Compensation Legal Department, urged employers to set up programs that allow injured employees receiving medical treatment the opportunity to return to light-duty work, if they are physically able, instead of having them stay home and collect short-term temporary disability benefits.
“Any temporary disability that you do pay as a result of a workers compensation accident will go into your experience rating,” Burghardt said, noting these ratings identify higher risk policyholders and impact premiums. “Whenever you can bring someone back on light duty, it’s a good idea.”
Workers who file for temporary disability benefits receive 70 percent of their average weekly wage up to a maximum $921 a week. That $921 figure represents 70 percent of the state average weekly wage ($1,228.25), and injured workers who normally earn more than that amount still max out at $921.
Attorney Michael Shadiack, who chairs the Labor and Employment Practice Group at Connell Foley LLP, said employers must understand that a medical leave of absence and wage replacement benefits during that leave of absence are two separate “railroad tracks” that shouldn’t be confused.
“Workers Comp doesn’t grant any employee leave from work; it is a benefit, a tremendous benefit, but it doesn’t grant an employee leave,” Shadiack said. “Do you know who grants the employee leave? You do as the employer by putting in place one of the (employment) laws that applies.”
Knowing how to effectively manage an employee’s leave of absence using company policies and applicable federal and state laws is key, Shadiack said.
For companies with 50 or more employees, the Federal Family and Medical Leave Act (FMLA), comes into play if the employee with a serious health condition has worked for the employer for at least 12 months and worked at least 1,250 hours during that time period. An employee who has only worked for a business for a three months, for example, would not be covered by the FLMA, he said.
FMLA requires employers to provide an unpaid leave of up to 12 weeks for a variety of reasons, including the health of the employee who has been hurt on the job. The employer must return the employee to the same or substantially equivalent position at the end of the FMLA leave and is required to maintain the employee’s health insurance while the employee is out.
Whenever an employee requests FMLA leave, the employer has five days to provide him or her with a “Notice of Eligibility and Rights and Responsibilities Form WH-381 and Medical Certificate Forms WH-380-E or WH-380-F, Shadiack said.
“You control the leave process, the employee has to cooperate” by returning the forms within 15 days, Shadiack said. If the employee fails to comply within 15 days, the employer can send a Warning of Failure to Provide Notice letter to the employee and eventually terminate the employee.
Employers with less than 50 employees who are not covered by the FMLA should consider company policies and the provisions of the Americans with Disabilities Act (ADA), as an alternative basis for granting a leave of absence, he said. The ADA applies to all private employers with 15 or more employees and can require an employer to grant medical leave as a “reasonable accommodation” if the leave would not impose an undue hardship on the employer.
The New Jersey Family Leave Act (FLA) does not apply to leaves due to an employee’s own serious health condition, only to serious health condition of a family member, Shadiack said.
However, the New Jersey Law Against Discrimination can require an employer to grant medical leave under certain circumstances, as a reasonable accommodation, if it would not impose an undue hardship on the employer, Shadiack said.