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Blog by:  Garry Watts, CPCU, CRM

The Federal Family and Medical Leave Act (FMLA) and state workers’ compensation laws may both cover an employee who suffers a serious health condition while on the job. The Department of Labor (DOL) has issued revised regulations that implement the FMLA. Though the interplay between the FMLA and workers’ compensation leaves was addressed within those regulations, a number of DOL letter rulings have also clarified the interaction of these laws.

This blog will answer common questions regarding employee leaves that qualify for protection under both the FMLA and workers’ compensation laws.

Does FMLA leave run concurrently with a workers’ compensation absence?

The employee’s FMLA leave entitlement may run concurrently with a workers’ compensation absence when the injury is one that meets the criteria for a “serious health condition.” Thus, an employee could receive workers’ compensation benefits to replace lost wages, while at the same time having health benefits maintained under the FMLA. However, if appropriate, the employer must be sure to designate this leave as FMLA-qualifying leave and must give notice of the same to the employee. If the employer fails to designate this leave as FMLA leave, the employee may still be entitled to FMLA leave once the workers’ compensation absence has ended.

Can an employer require an employee to substitute accrued paid leave if the employee is on workers’ compensation and FMLA leave?

Since the workers’ compensation absence is already considered paid leave, the FMLA provision for substitution of the employee’s accrued paid leave for unpaid FMLA leave does not apply. More specifically, if the employee has elected to receive workers’ compensation benefits, the employer cannot require the employee to substitute any accrued paid leave for any part of the absence that is covered by the payments under a workers’ compensation plan. However, an employee is also precluded from relying upon the FMLA’s substitution provision to insist upon receiving both workers’ compensation and accrued paid leave benefits during such an absence. However, employers and employees may agree, where state law permits, to have paid leave supplement the disability plan or workers' compensation benefits, such as in the case where a plan only provides replacement income for two-thirds 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 workers’ compensation absence as FMLA leave, then the employee is entitled to all employment benefits accrued prior to the date on which the leave commenced. The FMLA does not entitle the employee to the accrual of any seniority or employment benefits during any period of FMLA leave, nor to any right, benefit or position of employment other than that to which he or she would have been entitled had the employee not taken the leave. Thus, an employee on FMLA leave does not accrue seniority or employment benefits during the absence by operation of the FMLA. Nevertheless, in addition to the group health benefits guaranteed under the FMLA, an employee on FMLA leave, whether paid or unpaid, may be entitled to additional benefits while absent, depending on the employer’s established policy for providing such benefits when employees are absent on other forms of leave.

Stay tuned for FMLA and Workers' Compensation: Common Questions Answered Part 2 to receive more insight into the interplay between FMLA and Workers' Compensation.

**You may also register for the webinar COBRA, FMLA & The Injured Employee webinar on December 5th, 2012 at 12:00PM CST.  Click here to register.  Webinars are presented on topics of interest as a service for the public. They are intended for educational purposes and are available at no cost.
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