Q. One of our employees was injured on the job. She went to the hospital the same night, had surgery and was out of work for eight days. Can we apply
A. State workers’ compensation laws cover workplace injuries in general, while the covers “serious health conditions.” If an employee on a workers’ comp leave is out because of an injury that also qualifies as an FMLA “serious health condition,” then either the employee or employer may choose to have the employee’s FMLA 12-week entitlement run concurrently with a workers’ compensation absence.
As a general rule, employers should run employees’ FMLA entitlements concurrently with workers’ comp absences to avoid the “stacking” of leaves.
For example, suppose an employee injures himself on the job and can’t work for three months, but the organization failed to designate the leave as FMLA leave. After three months, the employee is released for light-duty work but he still has a serious health condition under the FMLA. The employee can now decline the light-duty position and take FMLA leave for an additional 12 weeks with all the job protections that go with it.