Workers’ Compensation vs. Family Leave

The Department of Labor (DOL) has issued revised regulations addressing certain situations where the Family and Medical Leave Act (FMLA) might overlap with workers’ compensation coverage. Based on those regulations and a series of DOL letter rulings, here are answers to some frequent questions:

Can FMLA leave happen concurrently with a workers’ compensation absence?

When an injury meets the criteria for a “serious health condition,” FMLA leave may run concurrently with workers’ compensation absence. The result would be that the employee could receive workers’ comp benefits to replace lost income, while also maintaining health benefits under the FMLA. The employer must designate this time as FMLA-related leave and must notify the employee, or else the employee might still be entitled to FMLA leave after the workers’ comp leave has ended.

If an employee is on workers’ compensation and FMLA leave, can an employer require that accrued paid leave be substituted?

A workers’ compensation absence is already considered paid leave. Therefore, the FMLA provision allowing substitution of accrued paid leave for unpaid FMLA leave does not apply. If the employee has elected to receive workers’ compensation benefits, the employer cannot require that accrued paid leave be substituted for any part of those benefits. An employee, however, may not use the FMLA’s substitution provision to receive both workers’ compensation and accrued paid leave benefits during such an absence. Where state law permits, employer and employee may agree to have paid leave supplement the disability plan or workers’ compensation benefits, as when a plan provides only a portion of an employee’s salary.

What benefits is an employee entitled to while on concurrent workers’ compensation and FMLA leave?

If the employer designates the absence as FMLA leave, the employee is entitled to all benefits accrued prior to the date on which the leave began. However, the FMLA does not entitle an employee to any right, benefit or position other than that to which he or she would have been entitled had the leave not been taken. Therefore, an employee does not accrue seniority or employment benefits during the absence. An employee on FMLA leave may be entitled to additional benefits while absent, depending on the employer’s established policy for providing such benefits during absences for other forms of leave.

What happens to an employee on concurrent workers’ compensation and FMLA leave when FMLA leave runs out?

If an employee is unable to return to work, or is still in a light-duty position, when the FMLA leave entitlement runs out, he or she no longer has the protection of the FMLA and must look to either the workers’ compensation statute or to the Americans with Disabilities Act if disabled.

Questions about FMLA leave or other benefits issues? Contact Consolidated Insurance.