Accidents happen, even when employers take reasonable steps to stay their employees safe on the work. That’s why knowing what to try to and what not do after a work-related injury is vital because it'll save the employer tons of frustration and expense.
At NJBIA’s seminar “Workers Compensation audit from Soup to Nuts” on Thursday employers learned the ins and outs of workers compensation insurance, the way to reduce the frequency of claims by creating a safer workplace, and the way to navigate the wants of the varied federal and state laws governing 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 line up programs that allow injured employees receiving medical treatment the opportunity to return to light-duty work, if they're physically able, rather than having them stay home and collect short-term temporary disability benefits. “Any temporary disability that you simply do pay as a result of a worker's compensation accident will enter 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 of $921 a week. That $921 figure represents 70 percent of the state average weekly wage ($1,228.25), and injured workers who normally earn quite that quantity still reach 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 to leave? You do as the employer by putting in place one of the (employment) laws that apply.” 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 a minimum of 12 months and worked a minimum of 1,250 hours during that point period. An employee who has only worked for a business for 3 months, for instance, wouldn't 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 a 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 worker has got 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) doesn't apply to leaves thanks to an employee’s own serious health condition, only to the serious health condition of a loved one, Shadiack said. However, the New Jersey Law Against Discrimination can require an employer to grant medical leave under certain circumstances, as an inexpensive accommodation, if it might not impose an undue hardship on the employer, Shadiack said.
