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Davis Brown Employment and Labor Law Blog

Employment Law Blog: As they say on Project Runway - Make it Work (for you): The Intersection of Work Comp and the Family and Medical Leave Act - September 14, 2012

This is a BIG topic. You can write volumes, not just a blog post, on the intersection of Work Comp and FMLA. These issues are always complicated by the fact that work comp attorneys and employment law attorneys are like squabbling siblings.  They each want something different, they want your attention and they always think they should go first.  But, if you are an employer managing worker's compensation there are some things about the Family and Medical Leave Act that are important to know.

Any leave taken under the Family and Medical Leave Act may be run concurrently with workers' compensation leave.  In other words, if you are going to be out for a week with a work comp injury, that time should count against your 12 week FMLA allotment. Just like any other leave, you need to let them know that they are on Family and Medical Leave, how much leave they have and how the leave process works. Intermittent leave also applies as part of the workers' compensation process. If someone is on restricted duty and can only work four hours in a day but you normally run eight hour days the remaining four hours is intermittent FMLA.

There are reasons why you want to run the FMLA out at the same time that you are utilizing your workers' compensation.  This includes leave stacking. The employee is completely done with workers' compensation, but refuses to return to work and still has 12 weeks of FMLA left. Additionally, you want to manage your internal policies and practices. How long you can actually have somebody in a make-work job before your company simply can't manage that kind of position anymore?  

One of the things that happens with workers' compensation is that if you offer and have an appropriate light duty job available, the employee is typically required to take that light duty job. If the employee does not take the light duty job the employee may end up forfeiting his/her workers' compensation benefits for failure to comply with the requirements. Many employers terminate employees who refuse suitable work and that can lead to litigation in the workers' compensation arena. However, under the FMLA, if a work comp employees refuses return to a suitable light duty job the employee still has whatever time is left on his/her FMLA account available. Therefore, you wouldn't be able to simply fire an employee who refused to return to work after he/she had been cleared if that employee has FMLA available. Just another good reason to make sure that you start FMLA and comply with the requirements of the law so that you can manage your work force and policies.