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.

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.

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).

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