By Leslie Lasher
It has been a while since my last installment in this blog series. Just to recap, I have reviewed the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) in detail. Today, the focus is on the third leg of the “Bermuda Triangle” of employee leave – workers’ compensation.
Unlike the FMLA and the ADA, workers’ compensation is a state law. The North Carolina Workers’ Compensation Act (NCWCA) requires employers with three or more employees to carry workers’ compensation insurance in order to provide benefits for employees who suffer a compensable work place injury.
There are too many details and nuances in the NCWCA to discuss in a blog article. The good news is that, if an employee suffers a compensable injury, the employer’s workers’ compensation insurance is usually immediately triggered, which provides the employer with an insurance claims adjuster and, in most cases, a workers’ compensation defense attorney specifically assigned to handle the claim.
There are a few things that are important to note when it comes to workers’ compensation benefits. In the event an employee is unable to work due to an injury, in most cases, the employee will be entitled to wage replacement benefits for up to 500 weeks from the date of the disability. Yes, 500 weeks – more than nine years. Wage replacement benefits are usually paid to the employee at the rate of 66 2/3 % of the employee’s pre-injury average weekly wage, or of the difference between the employee’s pre-injury wage and the current wage if working in an alternate position. The goal of the employer and its insurance carrier is typically to ensure that the employee is quickly able to return to work. However, that goal is not always met and employees are often out of work for extended periods of time.
A common misconception about NCWCA wage replacement benefits is that it is a type of protected leave. But, it is not. The primary purpose of this benefit is to provide wages, not leave. Under the current state of the law, the NCWCA does not require employers to provide any amount of protected leave. Nonetheless, employers often leave employees “on the books” or place them in “inactive” status for years upon years due to this misconception. On the other hand, in certain industries employers choose, rightfully so, to have formal, structured return to work programs with minimum leave entitlements being clearly outlined. These types of programs make the expectations much clearer, but are simply not needed in all industries, or for smaller employers.
Here’s the natural follow up question I am sure you are asking: does this mean that the employer does not have to provide job-protected, or paid leave for an employee receiving workers’ compensation benefits? The answer, which I am sure you will not be surprised to hear, is: it depends. An employee who is out of work due to a workers’ compensation injury may also be protected by the FMLA, the ADA and the North Carolina Retaliatory Discrimination Act (NC REDA). Oh, there are also some paid time off rules hidden in the NCWCA act that should not be overlooked.
Understandably, this is one of the hardest and most confusing areas of employment laws for many employers. In the final article of this series, I will walk you through a step-by-step process for determining the answer to this question.