Survivors of San Bernardino Attack Question Use of FMLA Leave

Published on 12/05/2016 by WorkCompCentral, authored by Greg Jones

Survivors of the 2015 terrorist attack in San Bernardino say the county tried to — and in some cases did — persuade them to apply for medical leave under a federal program that offers workers up to 12 weeks of unpaid time off for serious medical conditions.

The U.S. Department of Labor says employers can require injured workers to use time accrued under the Family Medical Leave Act if they suffer a qualifying serious illness or injury. And a national human resources expert said the FMLA rules can be read to require employers to designate time off work for injuries as medical leave.

But a defense attorney turned applicants’ attorney said using FMLA for work injuries is a common “trick” used to try to prevent people from filing comp claims.

The Family Medical Leave Act allows workers to take off up to 12 weeks for certain family and medical emergencies. When a worker is out on approved FMLA leave, the employer must maintain any health benefits as though the person were working. The person’s job is also protected and must be available to the worker at the end of the 12-week period.

Workers can use leave under FMLA to take time off following the birth of a child or to provide medical care for an immediate family member. FMLA also covers time away from work for serious health conditions, such as injuries or illnesses requiring hospitalization or incapacity due to chronic health issues such as diabetes or asthma, according to the DOL. Another condition that qualifies for FMLA leave is “a period of incapacity requiring absence of more than three calendar days from work, school or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider.”

Bob Hite, a knowledge adviser for the Society of Human Resource Management, said his reading of the FMLA rules suggests employers must designate time away from work for certain injuries as medical leave.

“If the injury or illness qualifies as a serious health condition under the Family Medical Leave Act, then there’s one school of thought that says the employer is required to designate any associated time off as family and medical leave,” he said.

Hite said using FMLA gives employers some sense of certainty about how long a person will be off the job. The federal program establishes a finite period during which the worker’s job is protected, and employers generally want to limit the amount of time employees are off.

“The short answer is an employer would do that to limit the potential for an employee to be off longer than what would be protected by law,” he said.

That’s not to say that an employer could summarily terminate an injured worker who has exhausted his or her leave. An extended period of unpaid time off work could be viewed as a reasonable accommodation required under the Americans with Disabilities Act, Hite said. And, an injured worker could have a case alleging retaliation for filing a comp claim if he is terminated for taking time off to recover.

Hite said the benefit of using FMLA time for workers is that they can keep their health insurance for the period they’re off of work. Depending on an employer’s eligibility requirements for enrolling in its health insurance plan, workers could lose coverage if they don’t work a sufficient number of hours while recovering from an injury.

FMLA requires businesses to offer health insurance to employees as though they were working, which would include continuing any contributions toward the premiums. Without the program, workers could have to pay the full bill to continue coverage through provisions in the Consolidated Omnibus Budget Reconciliation Act, or COBRA.

Workers can also get a raw deal using FMLA leave for workplace injuries, Hite said, because using the time off for a work injury would mean they wouldn’t have the option to use FMLA later.

“At the very base of this, the fact that employers would want to designate time off resulting from a workers' comp injury as FMLA time, if it qualified under FMLA, is a natural thing,” Hite said. “It's a legal thing to do. It's compliant with all the regulations. And the reason the employer would want to do that would be to limit the amount of time that a person would be off with job protection.”

Robert Grant, an applicants’ attorney in San Bernardino who previously worked as a work comp defense attorney, acknowledged that it’s not illegal for an employer to ask a person injured on the job to use FMLA leave. But he said it’s questionable whether such a request is moral or ethical.

“FMLA is just a trick they use to try to convince them not to file a workers’ compensation claim,” he said.

Grant said that when he was a defense attorney, he would admonish employers who tried to avoid claims by steering people onto medical leave. Employers are legally required to investigate workers’ compensation claims and pay appropriate benefits, but Grant said the thinking was that if a worker takes FMLA leave rather than filing a claim, the employer hasn’t skirted that responsibility because no comp claim was ever filed.

“One of the very common ploys that’s done was as soon as someone wants to file a claim, they say, ‘We would deny this as comp, why not take off on FMLA?” he said.

Alan Gurvey, managing partner of applicants’ form Rowen, Gurvey & Win, said on Wednesday that the interplay of FMLA leave and workers’ compensation can be complicated.

Strictly speaking, an injured worker is entitled to temporary total disability benefits if the employer does not have a union contract that offers similar benefits.

“Of course, if personal time, sick time or vacation time is used, It must be redeposited into the bank of benefits, so the worker is not charged for being injured on the job against the other employment benefits,” he said in an email. “If the defendant does not put the benefits back into the bank, then the injured worker is discriminated against. This is because they would otherwise be entitled to temp total disability benefits. One of the complicating factors is when you consider employment benefits, other than workers' compensation benefits, are taxable, where temporary total disability benefits are not.”

Gurvey, who is representing three survivors of the Dec. 2, 2015, terrorist attack on the San Bernardino Inland Regional Center, said his primary concern is making sure that his clients are not forced to use employment benefits in lieu of workers’ compensation. As long as his clients receive the comp benefits to which they’re entitled and are not forced to use other benefits, “then it works out fine,” he said.

He also said he doesn’t agree with the practice of using FMLA for workplace injuries, because that’s not the intended use of the program.

“Workers’ comp benefits are for workers’ comp, not FMLA, as FMLA is simply to maintain a job while the person is off for approximately 12 weeks, without pay,” he said.

One of Gurvey’s clients, Julie Swann-Paez, told WorkCompCentral on Wednesday that she just learned she had exhausted her medical leave about 12 weeks after she was shot two times during the attack.

Paez said she did not know she was out of medical leave until Tuesday. And she said she asked about her available leave only after a coworker told her the county refused to give him time off after his wife gave birth because he already exhausted his FMLA after the shooting.

“I was unaware they used all my FMLA time up,” she said. “It was exhausted by March 2. I was not aware they were using my FMLA time to deal with this.”

Geraldine Ly, an applicants’ attorney in Santa Ana who is representing nine workers who have filed claims following the shooting, said her clients said the county suggested they apply for FMLA leave and also use their private health insurance for any medical or psychological care they needed.

Ly said her clients said representatives from the county’s risk management department walked them through the process of filling out the form to request FMLA leave. But, she said, representatives from the county did not tell the workers that they could file workers’ compensation claims, let alone provide them with the form used to file a claim or instructions on how to fill it out.

Lucille Legorreta, an employee in the county’s Environmental Health Services Division, told WorkCompCentral on Thursday that she was also told initially to apply for medical leave. She said her request was denied because she had already exhausted her available time.

Legorreta was not physically injured in the attack, but she says she’s still struggling with the trauma of seeing 14 of her colleagues murdered and 22 others seriously wounded by a former co-worker — and the fact that the medications for anxiety and depression that were approved after the attack but have since been denied through utilization review isn’t helping.

“If wonder if I was on the medicine regimen I was on before, would it be as hard?” she said.

Legorreta said she was able to work up to four and a half hours a day when she had her medication. But the medication ran out Nov. 21, and right now her pharmacy is saying it can’t fill the prescriptions because the county won’t approve it.

“I’ve been reversed completely,” she said. “I’m a super independent person. Now I feel like I’m crippled. I started taking the medicine that was making me better, then they cut me off.”

She said she has joked with some of her colleagues who also had prescriptions denied about taking a trip to Tijuana to get the medication.

Legorreta said she doesn’t understand why her employer would be forcing her to jump through hoops to get the treatment she needs so she can move on.

She also said she feels guilty that all the media attention has turned to a fight over workers’ compensation benefits at a time when the focus should be on memorializing the people who were murdered.

WorkCompCentral, as well as newspapers including the New York Times and Wall Street Journal, recently reported on difficulties the survivors are reporting with utilization review denying treatment requests. Legorreta said she worries that it may appear petty to complain about workers’ compensation benefits after such a tragic event.

 “That’s what we want to focus on with the families,” she said. “We haven’t forgotten them. We still remember the human beings who were taken from us too soon. But now there is this dark cloud of, we’re not getting what we need. And how are the families going to feel about that?”