Can an Employer Use FMLA When on Worker's Compensation?

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Although workers' compensation is based on state law, Family and Medical Leave can be taken concurrently while an employee is out due to an injury incurred in the workplace.
Although workers' compensation is based on state law, Family and Medical Leave can be taken concurrently while an employee is out due to an injury incurred in the workplace. (Image: Jupiterimages/Photos.com/Getty Images)

Workmen's compensation and the Family Medical Leave Act both provide leave for injuries and serious medical conditions; however, they differ in some ways. Workmen's compensation is for injuries or illnesses sustained as a direct result of a person's job, while family and medical leave can cover a worker's illness or injury as well as those of close relatives. Employers can require that an employee use FMLA leave while on workmen's compensation

Workers' Compensation Basics

Regulations and documentation for workers' compensation vary from state to state, but all states have some fundamental workers' compensation regulations in place. Most state laws require employers to provide benefits to employees injured in the workplace. Workers' compensation applies to all private sector and public sector employers who have one employee or more. Unlike the restrictions for FMLA, workers' compensation generally begins on the first day of employment. Workers' compensation arises out of injuries or illnesses incurred on the job that impair an employee's work abilities.

FMLA Basics

The Family and Medical Leave Act provides 12 weeks of unpaid leave to qualified employees who work for covered employers. FMLA coverage is extended only to employees who have worked a minimum of 1,250 hours in the past 12 months. Only employers who employ 50 or more employees within a 75-mile radius are required to provide FMLA. Serious or chronic medical conditions such as diabetes, kidney failure and cancer are covered, as well as any medical condition that lasts three or more days and requires the treatment of a physician. Employees may also take family leave to have a baby, care for a newborn, adopt a child or care for a foster child. Leaves are also extended to employees who must care for an immediate family member with a serious medical condition, including parents, spouses and children.

Using Workmen's Compensation Concurrently with FMLA

Employees who qualify for FMLA and also have a condition that qualifies for workers' compensation may be asked by their employers to use FMLA leave to cover their absences from work. Employers have a duty to notify employees that their FMLA leave will be used during a worker's compensation leave. Failure to notify an employee that FMLA leave will be used during this time may result in the leave not being counted as FMLA in the eyes of the courts. There have been exceptions to this rule, however. Employers should follow the general rule of notifying employees that their FMLA leave will be used during a leave also covered by worker's compensation. Worker's compensation, depending on the state where you live, may provide additional compensation that subsidizes an otherwise unpaid FMLA leave.

Considerations

During an FMLA leave, the employer may only contact an employee -- not his physician -- in regard to his health condition. However, in many states, the employer has the right to speak with a physician directly concerning the worker's compensation injury or illness. Although compensation benefits may be provided during a worker's compensation injury leave, there is a seven-day waiting period before this compensation begins. Benefits can then become retroactive if the leave extends beyond the seven days. Employers have the right to offer employees receiving worker's compensation a lighter-duty assignment while they are recovering. Refusal to accept a lighter duty assignment by the employee could result in a termination of "temporary disability benefits." In these situations, FMLA leave cannot be terminated and the employee can remain on unpaid leave without temporary disability benefits until FMLA is exhausted.

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