Workers Compensation and FMLA

JustJo63 · #1 01-15-2009, 11:21 AM

My question involves workers compensation law for the state of: New York

I fell in my office on at the beginning of this month. I have a fracture in my shoulder along with a tear in the rotator cuff tendon. I am currently under a workers compensation claim. I have been given the approval for the MRI and to see a surgeon and the card for all medications under the WC claim. So far no problem.

My question is this: If you are out on a WC claim are you also out on FMLA? I was told that even though I am on Workers' Comp., I still qualify for FMLA which protects my medical benefits for 12 weeks from the date of the accident. At the end of the 12 week period, if I am unable to return to work, that will be a qualifying event making me eligible to elect COBRA.

Why should I be on FMLA and WC at the same time? Are they not two separate situations? Why should I have to elect COBRA then? If they are suppose to be at the same time, is there any reason why I would not, at that time after the 12 weeks be permitted to just be under my husband's insurance (since I am covered by him) not to incur the COBRA expense? Then, upon returning to work (hopefully) go back to having my own insurance through my job as before.?

Mr. Knowitall · #2 01-18-2009, 01:51 AM

What are you stating? That if you take FMLA leave, your employer's policy is that it will pay for your benefits during your leave?

Betty3 · #3 01-18-2009, 11:54 AM

Workers Comp does not provide job protected leave. It it just income while disabled from your on the job injury & can't work. FMLA (you apparently qualify per your post) gives you up to 12 weeks of job protected leave while you are out on WC due to your injury. FMLA will run concurrent with you being out due to your WC injury.

While you are out on FMLA, you get to keep your health benefits & your employer must continue to pay whatever premiums the employer would pay if you were not on leave. After 12 weeks of FMLA are up, if you can't return to work or haven't already, your job is no longer protected & you & your health benefits can be terminated. At that time if you & your employer qualify for COBRA (seems you do since you mentioned it in your post - NY has their own "COBRA" if federal doesn't apply), your employer has to offer it to you. You do not have to elect it if you have other coverage or for whatever reason you do not want it.

cbg · #4 01-18-2009, 05:31 PM

If you, the employer, and the injury all qualify for FMLA, the employer MUST apply FMLA protections, regardless of whether the injury is work related or not. There is nothing that excludes work related conditions from FMLA.

You cannot just jump from policy to policy at any time. Your husband's policy will, like all other employers, be subject to regulations dictating when they can and cannot add or subtract dependents. While I am not saying that you will not be able to make that move, you'll have to check with his employer as to whether this will be a qualifying event under HIS policy. If it's not, it doesn't matter whether it's a qualifying event under yours or not.

Betty3 · #5 01-18-2009, 08:06 PM

Quoting JustJo63

If they are suppose to be at the same time, is there any reason why I would not, at that time after the 12 weeks be permitted to just be under my husband's insurance (since I am covered by him) not to incur the COBRA expense?

Are you already covered by your husband's health ins. (you note "since I am covered by him") & health ins. also through your employer? If so, if your health ins. terminates, you should be able to continue ins. just under his policy.

Anyway, COBRA is your choice - you do not have to take it.