1. How are leaves covered under the FMLA and workers’ compensation statutes and how much time off is required?
2. When is a WC injury covered under the FMLA?
3. Should WC leaves be treated separately from other types of leaves?
4. Should the employer give the employee any special notification under the FMLA?
5. Does an employer have to pay for health insurance for an employee on WC leave?
6. Can an employee on WC leave be required to use vacation or sicK leave?
7. If the employee is released to light duty, can he be required to return to work?
8. Does the employer have to reinstate an employee returning from a WC leave?
Prevent Legal Headaches: Count WC Leave as FMLA

Implementing the FMLA can be tricky, especially when a leave of absence involves workers’ compensation injuries. This article answers some of the most common questions concerning workers’ compensation and the FMLA.

The Family and Medical Leave Act (FMLA) statute does not contain any direct reference to workers’ compensation injuries, and employers did not receive specific guidance on the topic until the April 1995 final regulations. However, since most workers’ compensation leaves are covered under the FMLA, an employer’s failure to treat these leaves as FMLA leaves can lead to inadvertent violations of the statute’s requirements. To help navigate the complicated legal maze of the FMLA and workers’ compensation, the Editors have identified eight frequently asked questions on this topic. The answers are based on analyses of the FMLA, its regulations, court cases, Department of Labor Wage and Hour opinion letters, and discussions with HR and legal experts.

1. How are leaves covered under the FMLA and workers’ compensation statutes and how much time off is required?

The FMLA is a mandatory federal leave law intended to protect employees who need to take time away from work to attend to certain family and medical problems. It applies to employers with 50 or more employees and all public agencies and schools and allows an eligible employee to take up to 12 weeks of job-protected leave for various family and medical reasons, including medical leave when the employee is unable to work because of a "serious health condition."

Workers’ compensation ("WC") statutes are primarily state liability and income continuation laws that protect employees who are injured while working. Almost every state has a law that guarantees an income (funded by employers and the state) to employees injured on the job and at the same time places limits on the employer’s responsibility for the injury. Benefits vary from state to state but typically include medical treatment, rehabilitation, disability, and wage continuation. WC statutes generally are not leave laws, however. Most states do not require employers to give a specific amount of leave for workers’ compensation, and only a few states require reinstatement from WC leave.

2. When is a WC injury covered under the FMLA?

If the employee is eligible for leave under the FMLA and the injury is considered a "serious health condition," the WC leave should be treated under the FMLA. The FMLA defines serious health condition broadly to include any "illness, injury, impairment, or physical or mental condition that involves" either inpatient care or continuing treatment by a health care provider. The statute does not distinguish between work-related and nonwork-related injuries. Thus, any on-the-job injury that requires an employee to take leave to seek inpatient care or continuing treatment likely will be covered by the FMLA.

Accordingly, whenever an employee is injured on the job and needs time off to recover, the employer immediately should determine if the employee also is eligible for leave under the FMLA. If the employee is eligible for FMLA leave, the employer should notify the employee in writing that the leave is covered under the FMLA so that the leave time may be counted against the employee’s 12-week FMLA entitlement. If the employer does not run the WC leave concurrently with the FMLA leave, the employee may still have the full 12-week FMLA entitlement available to use after the WC leave.

3. Should WC leaves be treated separately from other types of leaves?

Some experts suggest that WC leaves be treated separately from all other types of leaves to ensure compliance with the requirements of state workers’ compensation laws. However, treating workers’ compensation as a totally separate category of leave may cause employers to inadvertently neglect the requirements of the FMLA.

4. Should the employer give the employee any special notification under the FMLA?

In order to deduct the time spent on WC leave from an employee’s annual FMLA leave entitlement, the employer must notify the employee in writing that the WC leave is designated as FMLA leave and will count against, and run concurrently with, the employee’s 12-week entitlement. The notice to the employee must detail the specific obligations of the employee while on FMLA leave and explain the consequences of a failure to meet these obligations. Most employers use the Department of Labor’s Form WH-381 to comply with these notice requirements. If the employer does not provide the notice, it cannot count the WC leave towards the 12-week FMLA entitlement. Therefore, the employee may be entitled to an additional 12 weeks of FMLA leave at a later date.

If the employee has been on WC leave without being placed specifically on FMLA leave, the employer should send notice to the employee immediately so that the FMLA clock starts running. However, the employer may then only designate the leave from the date written notice to the employee is provided. It cannot retroactively designate the time spent on WC leave against the FMLA entitlement.

5. Does an employer have to pay for health insurance for an employee on WC leave?

If the employee qualifies for FMLA leave and the employer normally pays for health insurance, the answer is yes. Although most state WC laws do not require employers to pay for health insurance during a WC leave, the FMLA requires the continuation of health insurance benefits during an FMLA leave. Typically, the state WC laws cover the employee’s medical costs related to the work injury but do not mandate continued coverage under, or payment for, a health insurance plan. However, under the FMLA, employers must provide the same health benefits during an eligible employee’s FMLA leave that it would have provided if the employee worked throughout the leave. Thus, if the employer normally pays 80% of an employee’s health benefits premium, it must continue to do so during the employee’s FMLA/WC leave.

6. Can an employee on WC leave be required to use vacation or sick leave?

The FMLA allows employers to require employees, or employees to elect, to substitute accrued vacation, sick, or other paid leave for all or part of the 12 weeks of unpaid leave. Employees on WC leave typically receive up to two-thirds of their normal pay as a wage benefit under state law. In recognition of this benefit, the FMLA regulations do not allow the use of paid leave if the employee is receiving workers’ compensation, even to make the employee "whole" or if requested by the employee. However, the employer may designate the leave as FMLA leave and count it against the employee’s 12-week FMLA entitlement.

7. If the employee is released to light duty, can he be required to return to work?

Most light duty positions do not include the employee’s normal job functions. Therefore, if the employee is unable to perform the essential functions of the job because of the work-related injury, he may continue to take any remaining FMLA leave and cannot be required to accept the light duty position. However, if the state workers’ compensation statute requires the employee to take the light duty assignment to continue receiving wage benefits, the employee’s WC benefits may be discontinued. The employee then must be allowed to use any accrued paid leave during the remaining unpaid FMLA leave.

8. Does the employer have to reinstate an employee returning from a WC leave?

If the employee is covered under the FMLA, he must be reinstated to the same or an equivalent position. The employee must be reinstated even if the employer did not notify the employee of coverage under the FMLA. If the employee does not return to work at the end of the 12-week FMLA leave, the employer may terminate the employee without violating the FMLA as long as the termination is consistent with the treatment of similarly-situated employees who have taken FMLA leave. However, the employee must have been properly placed on FMLA leave and notified that the time off for WC leave ran concurrently with the FMLA. In addition, a few state WC laws, such as Oregon, require reinstatement regardless of the length of the WC leave. As a further complication, the employee may be considered disabled under the Americans with Disabilities Act and, therefore, may be entitled to additional leave as an accommodation.

Prevent Legal Headaches: Count WC Leave as FMLA

Since most workers’ compensation leaves typically will be covered under the FMLA, employers should be prepared to comply with both laws. Failure to categorize a WC leave as a FMLA leave generally will not harm the employee as long as he gets all of the benefits of FMLA leave, such as continued health insurance and reinstatement rights. However, the employer may lose the opportunity to count the time on WC leave against the employee’s FMLA entitlement and may extend unnecessarily the employee’s FMLA leave eligibility. In addition, employers may violate the FMLA if they do not reinstate an employee from a WC leave that was not properly designated as FMLA leave.