The Interaction Between FMLA and Workers Compensation: Can I Be Required to Use FMLA Leave for My Work Related Injury?

Jill Hartley

Where an employee is injured at work, one frequent question is whether the employee can be forced to use their available Family and Medical Leave Act (FMLA) leave to cover the work related injury. The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave each year – with continued group health insurance coverage – for specified family and medical reasons. Often, a serious work injury will qualify for both FMLA and worker’s compensation.

Can You Use FMLA and workers compensation concurrently?

It is important to keep in mind that workers’ compensation can run concurrently in some cases, meaning that workers comp leave can count toward their FMLA leave entitlement. This can only occur if the employee’s absence is due to a serious illness or injury and the employer takes proper and proactive steps to notify their injured or ill employee in writing that the leave will count as an FMLA leave.

How does FMLA and workers compensation work together?

When there is an overlap of FMLA and workers’ compensation, they will run concurrently. This means that an employee will receive workers’ compensation benefits all the while the time is counted against their 12-week FMLA leave.

When they are running concurrently, employers must provide leave based on the greater of the two benefit programs. For instance, an employer would not be allowed to require their employee to take time off under FMLA instead of workers’ compensation if they are actually eligible for workers’ comp.

Worker’s compensation leave can run concurrently with unpaid FMLA leave and may count toward an employee’s FMLA leave entitlement, provided the reason for the absence is due to a qualifying “serious health condition” as defined in the FMLA. In Wisconsin, your employer may require that you use your entire 12 week federal bank of leave (assuming it lasts 12 weeks) for your worker’s compensation injury.

However, under Wisconsin’s version of the FMLA you still have your 6 state weeks for birth/adoption or 2 weeks to care for a family member, but it uses your two state weeks for your own serious health condition.

If I Get Hurt At Work, Must I File for FMLA?

If your employer has workers’ compensation insurance and you have been injured at work, you will likely be entitled to workers’ compensation and not need to file FMLA. Your employer cannot legally force you to take an absence of work under FMLA instead of receiving benefits.

You may, however, be asked to take time off work in addition to receiving workers’ compensation benefits.

An employee’s receipt of workers’ compensation payments precludes the employee from electing, and prohibits the employer from requiring, substitution of any form of accrued paid leave for any part of the absence covered by such payments. Substitution can be forced only if the leave is unpaid. If you are receiving STD, LTD, TTD or light duty under workers’ compensation, or any other pay, no substitution is allowed or can be forced. See Repa v. Roadway Express, Inc., 477 F.3d 938 (7th Cir. 2007).