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New Jersey Workers’ Comp and the FMLA: What Are Your Clients’ Options?

New Jersey Workers’ Comp and the FMLA: What Are Your Clients’ Options?New Jersey Workers’ Comp and the FMLA: What Are Your Clients’ Options?

Oftentimes, the needs of your client’s employees will create an overlap or conflict between the Family and Medical Leave Act (FMLA) and New Jersey Workers’ Comp. For example, your client may have a situation where an employee claims Workers’ Comp, however they are unable to return to work, with or without accommodation, for several months. The question your clients will then have is what are their options?

The FMLA entitles eligible employees to job-protected leave for qualifying reasons. One reason may be due to the employee’s serious health condition. The cause of the condition is not relevant, meaning it may be work-related or not. New Jersey Workers’ Comp, as you know, provides for health care and income replacement, but does not necessarily provide for job protection. Workers’ Compensation laws generally indicate that employees relinquish their right to sue their employers for work-related injuries.

There are some employment leaves that would be covered by both New Jersey Workers’ Comp and FMLA laws. For instance, a work-related injury that requires in-patient treatment or that keeps the employee out more than 3 days plus treatment would be a leave that would fall under both areas. Another example would be a work-related injury that is a chronic serious health condition under the FMLA.

The two laws do have some interesting differences. Where provisions of both laws are running simultaneously, an employee may turn down light duty. If that happens, the employee may lose their New Jersey Workers’ Comp benefits, however would retain FMLA right to a continuation of job-protected leave.

If an employee returns to work in a light duty capacity under New Jersey Workers’ Comp laws, your client typically may be able to pay the employee a lower wage than that of the employee’s normal position. The reason for this is because there is no such thing as “FMLA light duty”. There is New Jersey Workers’ Comp light duty, where pay is normally not governed, and FMLA leave. Under the FMLA, if an employee is transferred to an alternate position which better accommodates recurring periods of leave than does the employee’s regular position, such a position must have equivalent pay and benefits. However, light duty is generally not an alternative position.

At the Associated Specialty Insurance Agency, Inc. (ASIA), we understand that New Jersey Workers’ Compensation Insurance is a front-and-center issue for employers, the insurance distribution system, Comp boards, and state legislatures. Insurance agents and brokers with access to competitive markets will not only capitalize on the ability to secure coverage for their clients, but they can also now leverage an improving economy set to spur the Workers’ Compensation industry with an increase in jobs and payroll exposure. Please contact us at (866) 679-7457 today to learn more about our Workers’ Compensation solutions for a wide variety of Targeted Industries.

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