Can my employer open up an FMLA claim for me without my approval after an on the job injury?

As a flight attendant my friend had an on the job injury, and after a few weeks found out that her airline opened an fmla claim on her behalf instead of workmans comp. Please advise.

2 answers  |  asked May 22, 2013 1:28 PM [EST]  |  applies to New York

Answers (2)

Patricia Pastor
It is to your benefit that your employer opened a FMLA claim. FMLA (Family Medical Leave Act) provides a different type of protection than Workers Compensation law. The FMLA claim will protect your job during certain missed time from work to address your medical treatment. FMLA does not require your employer to provide any compensation or wages in connection with time missed from work due to your injury. Workers Comp provides compensation for your time lost from work, assuming the claim is substantiated. You are not required to choose between FMLA protection and filing a workers compensation claim, as they are not mutually exclusive; and it is unlikely your employer filed the FMLA claim with the intention of depriving you of your right to file for workers compensation benefits. It is not up to the employer to decide which claim to file. The employee, not the employer, files both a FMLA claim and a workers comp claim.

posted by Patricia Pastor  |  May 22, 2013 2:35 PM [EST]
Jim Barna
Your question raises two issues.

If your friend was hurt on the job, her employer has to accept her workers' compensation claim. The employer cannot refuse to take the claim. Although if it turns out that the injury did not happen at work, the claim will be invalid.

With regard to FMLA, it is permissible for the employer to treat the absence as both workers' compensation and FMLA leave, if it applies this policy uniformly. Both the workers' compensation law and the FMLA have provisions to discourage employers from terminating employees who are receiving benefits, but the FMLA protections are much stronger.

Jim Barna

posted by Jim Barna  |  May 22, 2013 1:58 PM [EST]

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