FMLA and Workers Compensation: Can They Run at the Same Time?

FMLA and Workers Compensation: Can They Run at the Same Time?

A workplace injury creates two parallel sets of obligations for employers. Workers compensation handles the medical treatment and wage replacement side. FMLA handles the job protection side. Many HR managers treat these as completely separate programs. In many cases they are not.

When a workplace injury qualifies as a serious health condition under FMLA, both programs can — and should — run at the same time. Understanding how they interact prevents costly mistakes and protects your organization from liability on both fronts.

When a workplace injury triggers FMLA

Not every workplace injury triggers FMLA. Minor injuries that do not result in a period of incapacity generally do not qualify as serious health conditions. A sprained finger that keeps an employee off work for a day or two is unlikely to qualify.

However, injuries that require inpatient care or continuing treatment by a healthcare provider do qualify. A back injury requiring surgery and a multi-week recovery period qualifies. A repetitive stress injury requiring ongoing physical therapy qualifies. Any injury that causes a period of incapacity lasting more than three consecutive calendar days plus treatment by a healthcare provider qualifies.

When the injury meets the serious health condition standard, the employer must designate the resulting leave as FMLA-protected — even if the employee never mentions FMLA. Failing to designate is a common and costly mistake.

Running FMLA and workers compensation concurrently

When both programs apply, they run at the same time. The employer should notify the employee in writing that the workers compensation leave is also being designated as FMLA leave. This notification protects the employer by counting the leave against the employee’s 12-week FMLA entitlement.

Some employers hesitate to designate FMLA concurrently with workers compensation because they fear it will complicate the workers compensation claim or upset the employee. Neither concern justifies failing to designate. The DOL has made clear that concurrent designation is both permitted and required when the injury qualifies.

Running the leaves concurrently benefits the employer. It ensures the FMLA entitlement counts down during the workers compensation period. Without concurrent designation the employee could complete their workers compensation leave and then claim an additional 12 weeks of FMLA leave for the same injury.

Job protection under both programs

FMLA provides strong job protection. An employee who returns from FMLA leave within 12 weeks is entitled to be restored to the same or an equivalent position. This protection applies regardless of whether workers compensation is also involved.

Workers compensation job protection varies by state. Some states provide strong reinstatement rights. Others provide limited or no reinstatement protection beyond what FMLA offers. Understanding the interaction between FMLA and your state’s workers compensation law is important for making any employment decisions involving an injured worker.

One situation that creates particular complexity is the employee who is unable to return to work at the end of their FMLA entitlement due to ongoing workers compensation recovery. At that point FMLA job protection ends. Workers compensation and potentially the ADA govern what happens next.

Light duty and FMLA

Workers compensation programs often include light duty return-to-work options. Light duty assignments allow injured employees to return to work in a modified capacity while they continue recovering.

Under FMLA, employees cannot be required to accept a light duty assignment in lieu of taking FMLA leave. An employee who is entitled to FMLA leave can decline a light duty offer and continue on FMLA leave instead. Requiring an employee to accept light duty as a condition of maintaining FMLA protection constitutes interference with FMLA rights.

However, once the employee’s FMLA entitlement is exhausted, the equation changes. At that point the employer can require a return to light duty or the employee may lose their job protection. Communicate this timeline clearly to employees in writing.

Wage replacement during concurrent leave

Workers compensation provides wage replacement benefits — typically a percentage of the employee’s average weekly wages — while the employee is unable to work. FMLA leave itself is unpaid unless the employer requires or the employee chooses to use accrued paid leave.

When workers compensation and FMLA run concurrently, the employer generally cannot require the employee to use accrued paid leave on top of workers compensation benefits. The employee is already receiving wage replacement through workers compensation. Stacking paid leave on top is not required.

Some employers’ FMLA policies attempt to require paid leave substitution in all cases. This approach creates problems in the workers compensation context. Review your FMLA policy to ensure it addresses the workers compensation wage replacement situation specifically.

Medical certification in the workers compensation context

FMLA allows employers to require medical certification for leave related to a serious health condition. When workers compensation is also involved, the employer already has access to medical information through the workers compensation claim process.

You can use the medical information obtained through workers compensation to support the FMLA designation. You do not need to require a separate FMLA medical certification when sufficient medical information already exists through the workers compensation process.

However, if the workers compensation medical information does not address all the elements required by the FMLA certification, you can request additional information. Keep all medical information confidential regardless of which program generated it.

Coordination with state workers compensation laws

Workers compensation is governed by state law and varies significantly across states. Some states have laws that restrict employers from taking adverse employment actions against employees who file workers compensation claims. These laws interact with FMLA in complex ways.

California, New York, and several other states have particularly strong workers compensation protections that employers must understand alongside their FMLA obligations. If your organization operates in multiple states, review the workers compensation and FMLA interaction in each state where you have employees.

Building a coordinated process

Managing FMLA and workers compensation concurrently requires coordination between HR and your workers compensation administrator. Establish a clear internal process for identifying workers compensation cases that also qualify for FMLA designation.

Every workers compensation claim involving a serious health condition should trigger an FMLA eligibility review. If the employee is eligible, send the Notice of Eligibility and designate the leave concurrently. Document every step of the process under both programs.

FMLAPro Tracker Pro tracks FMLA leave across all qualifying situations including concurrent workers compensation cases. It manages your documentation and deadline tracking inside Microsoft Excel. Visit our store to learn more or contact us with any questions about managing concurrent leave programs.

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