FLMA and Workers' Compensation
Issue # 85
January 12, 2009
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 which 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 edition of risKey answers common questions regarding employee leaves which qualify for protection under both the FMLA and workers' compensation laws.
Does FMLA leave run concurrently with a worker's 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.
Is an employee required to return to a "light duty" job when it is not the same job or is not equivalent to the job the employee left?
If the health care provider treating the employee for the workers' compensation injury certifies the employee is able to return to a light duty job, the employee may decline the employer's offer of a light duty job if it is not the same or is not an equivalent job the employee left. However, as a result of turning down such light duty job, the employee may lose workers' compensation payments, but is entitled to remain on unpaid FMLA leave until the FMLA entitlement is exhausted. Additionally, when the workers' compensation benefits cease, the employee may elect or the employer may require the use of accrued paid leave.
If the employee accepts the light duty position in lieu of FMLA leave or returns to work before the FMLA leave entitlement ends, the employee retains the right to the original or to an equivalent position. However, the period of time employed in a light duty assignment cannot count against FMLA leave entitlement. The right to restoration is held in abeyance during the period of time the employee performs a light-duty assignment. That right is not unlimited and ceases at the end of the applicable 12 month FMLA leave year. Restoration is dependent on the employee's ability to perform the essential functions of the same or equivalent position at the end of FMLA leave.
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 thus 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 inco0me for two-thirds of an employee's salary.