Leave Management, Policy, and Compliance

Ask the Expert: Can We Designate Employee’s Workers’ Comp Time as FMLA Leave?

Question: Can an employer designate time that an employee is on workers’ compensation as Family and Medical Leave Act (FMLA) leave, even if the employee does not want us to?

FMLA leave

Answer from the experts at HR.BLR.com:

Time taken off from work due to an injury covered under a state workers’ compensation program may be counted against the employee’s FMLA leave entitlement if the injury is a “serious health condition” and the employer designates the leave as FMLA leave; the employee’s preference does not need to be taken into account. If the workers comp injury and the FMLA-covered serious health condition occur simultaneously, the leave time under both FMLA and workers comp can run concurrently.

Because the workers’ compensation absence is paid (at least in part), the employer may not require the substitution of accrued paid leave during workers’ compensation leave. However, employers and employees may agree, where state law permits–as in Texas (where you indicated you were from)–to have paid leave supplement workers’ compensation benefits. When workers’ compensation benefits end, the employee may elect or the employer may require the use of any remaining accrued paid leave.