The Family and Medical Leave Act[“FMLA”]is terrific legislation – and provides that under certain circumstances, an employee can take up to 12 weeks off per year[unpaid] without the threat of job loss. But when a worker gets hurt at work, sometimes employers use FMLA as a sword instead of a shield.

I see this quite a bit – an employee gets hurt at work and needs time off to recover. The employee then files a Workers’ Comp claim. The employer recognizes that the worker has a serious injury that would qualify him for FMLA and then designates the leave as FMLA leave – to run concurrently with time off under Workers’ Comp. Entirely legal. The FMLA designation though, places certain responsibilities upon the employee – in terms of medical certification and periodic reporting. And, if after 12 weeks leave the employee can’t perform her job because of physical limitation, FMLA does NOT require the employer to place her in a less demanding job. So some less scrupulous employers are delighted to place injured workers on FMLA leave – and when the worker can’t return in 12 weeks, they hire someone else and the employee is out of a job. And to make matters worse, some employers will then cut off Worker’s Comp benefits such as Temporary Total Disability[“TTD”] which are payments made to injured employees amounting to 66% of their weekly wage. Employees out due to injury need those payments to meet everyday household expense. To have them evaporate can be devastating.

The Illinois Supreme Court hasn’t dealt specifically with this issue, but theInterstate Scaffolding v. Illinois Workers’ Compensation Commission decision seems to make it pretty clear that the above practices have no legal support. The Court ruled that the ONLY question to consider when determining if an employee gets TTD is if that employee remains unable to return to work as a result of a work-related injury. If that employee can’t return to work, that employee should get TTD – even if terminated due to some alleged FMLA infraction.

But some employers are not particularly impressed by Illinois Supreme Court decisions. They will still try to eliminate employees who have the nerve to file Worker’s Compensation claims. Lots of unsuspecting employees hurt at work have lost Worker’s Compensation benefits because their employers used FMLA to create murky reasons for the elimination of employees. Don’t let it happen to you.