Should I take FMLA leave, workers' compensation, or both?

Who Is Eligible for FMLA Time Off?

Both full-time and part-time workers are eligible, but you must have worked at least 1,250 hours for your employer over the preceding 12 months to apply for your 12 weeks of leave, which you may take consecutively or intermittently. While you're on leave, your employer has to continue providing the healthcare benefits you normally receive. When you return to work, you should be given the same position that you left or one with equivalent pay and benefits.

The South Carolina Workers' Compensation Act

Most South Carolina businesses and companies with four or more employees are required to carry workers' compensation insurance, which provides no-fault coverage of work-related accidental injuries and occupational illnesses. Workers' comp pays injured employees' medical expenses and reimburses two-thirds of wages they lose while off work. In some cases, disability care and vocational re-training are available, as well.

Workers' Comp Replaces Lawsuits

Workers' comp exists, in part, to eliminate and replace lawsuits filed by injured employees against their employers. In most cases, you may not sue the company you work for if you're injured on the job. You can receive compensation only through workers' comp unless a third party is fully or partially responsible for your injury or illness, in which case an attorney can help you to file a third-party lawsuit. You don't have to prove negligence on the part of your employer in order to file a workers' comp claim, and you may not be fired for doing so. 

FMLA or Workers' Comp: Which Should You Use?

If the health condition that entitles you to FMLA leave is the result of a work-related injury or illness, you're technically entitled to workers' compensation, as well. In such a circumstance, your employer is required to give you whichever of the two provides you with greater benefits. In most cases, this will be workers' compensation because it pays all medical expenses and reimburses most of your lost wages, whereas FMLA simply gives you unpaid time off.

You Can't Be Forced to Choose FMLA Over Workers' Comp

The money to pay a workers' comp claim comes from your employer's insurance company, which might raise your employer's premium after paying your benefits. For this reason, your employer might prefer that you take FMLA leave instead of filing a workers' comp claim, but forcing you to do so is illegal. If you're pressured to choose FMLA and forego workers' comp, you should contact an attorney right away. If you do file a successful claim for workers' comp benefits, your employer may count your time off work as all or part of the FMLA leave to which you're entitled. This is legal as long as the employer informs you in a timely fashion that you'll be using your FMLA leave while you're off work.

Workers' Comp Is Harder to Get

Your workers' comp coverage is provided by your employer's insurance company, which is in business to earn profits for its shareholders. Because paying workers' compensation benefits reduces profits, the insurer is likely to dispute, delay, devalue, or deny your claim if it's an expensive one with serious injuries, high medical expenses, and a long recovery time. The insurer might claim:

• Your injury isn't work-related and/or is the result of a pre-existing condition.
• You didn't report your injury or file your claim on time.
• You didn't see the right physician for treatment.
• You intentionally caused your own accident.

The insurer might also delay resolving your claim so that you have to use FMLA leave while awaiting a decision. In any such circumstance, or if your employer retaliates against you for filing, a workers' comp attorney can help you by requesting a hearing before the SC Workers' Compensation Commission or appealing your denied claim to the SC Court of Appeals.

Have You Been Injured on the Job in Conway, South Carolina?

If you've been hurt at your job, you can speak with a workers' compensation lawyer. Please contact us online or call our Conway office directly at 843.248.7486 to schedule your consultation. We are also able to meet clients at our Charleston, Myrtle Beach, Murrells Inlet, Mt. Pleasant, North Myrtle Beach, Florence or North Charleston office locations.