An employee’s workers’ compensation absence may be due to an on-the-job injury or illness that also qualifies as a serious health condition under the Family and Medical Leave Act (FMLA). In this scenario, the workers’ compensation absence may be counted against an employee’s FMLA leave entitlement if the employer properly notifies the employee that the absence will be designated as FMLA leave.
Although an employer may offer the employee a light-duty position under workers’ compensation rules, the FMLA does not require the employee to accept the light-duty position. The employee may decline the light-duty position and continue on FMLA-protected leave until he or she is able to return to the same or equivalent job he or she left. If the employee does not accept the light-duty position, however, he or she may lose workers’ compensation benefits.
Q: Does FMLA leave run concurrently with a workers’ compensation absence?
A: An employee’s FMLA leave may run concurrently with a workers’ compensation absence when the injury is one that meets the criteria for a “serious health condition” under the FMLA. Thus, an employee could receive workers’ compensation benefits to replace lost wages, while at the same time having health benefits maintained under the FMLA.
Q: What benefits is an employee entitled to while on concurrent workers’ compensation and FMLA leave?
A: If an employee receiving workers’ compensation benefits is also on FMLA leave, his or her employer must maintain the employee’s group health plan coverage as if the employee had not taken the leave. Also, if the employer designates the workers’ compensation absence as FMLA leave, then the employee is entitled to all employment benefits accrued prior to the date on which the leave commenced.
Q: Is an employee required to return to a “light-duty” job when it is not the same job or is not equivalent to the job the employee left?
A: If the health care provider treating the employee for the workers’ compensation injury certifies the employee is able to return to a light-duty job, the employee may decline the employer’s offer of a light-duty job if it is not the same or is not an equivalent job to the job the employee left. However, as a result of turning down this light-duty job, the employee may lose workers’ compensation payments, but is entitled to remain on unpaid FMLA leave until the FMLA entitlement is exhausted.
Q: What happens to an employee on concurrent workers’ compensation and FMLA leave once the FMLA leave entitlement has run out?
A: If the employee is unable to return to work or is still in a light-duty job after the FMLA leave entitlement has run out, the employee no longer has the protections of the FMLA and must look to the workers’ compensation statute or to the federal Americans with Disabilities Act (if the employee is a “qualified individual with a disability”) for any further relief or protections.