How does workers’ comp work alongside FMLA leave?

Q. We have an employee out of work due to a workers’ compensation injury. Does the employee’s time off count against his FMLA leave?

A. If the employee’s on-the-job injury or illness qualifies as a serious health condition under the FMLA, the workers’ compensation absence and FMLA leave can run concurrently, assuming that your company has provided the injured worker with the proper notice and designation.

Be aware that at some point the employee’s health care provider may certify that the employee is able to return to work in a light-duty position. If your company offers the employee light-duty work, the employee does not have to accept the position if he is also eligible for FMLA leave. If the employee declines the light-duty position, the time off from work would represent FMLA leave, and the employee would likely not qualify for workers’ compensation benefit payments during this period.

He will, however, still be entitled to continue unpaid FMLA leave until he is able to return to the same or equivalent position or has exhausted the 12 weeks of FMLA leave.

Finally, keep in mind that the injured employee may also be a qualified individual with a disability and have rights under the ADA.