HR Management & Compliance

WC, FMLA, ADA: The Bermuda Triangle of HR

Most HR managers have most workers’ comp challenges in hand, but there are few who are confident that they’ve figured out the intricacies of comp’s interplay with the FMLA and the ADA.

We’ll go to for help. If the reason a worker is out for work injury would otherwise qualify for a leave under the Family and Medical Leave Act (FMLA), and the employer is covered under the FMLA, the employer generally will want to designate the leave as FMLA leave.

Final FMLA regulations provide that leave taken under workers’ compensation would be considered FMLA leave for a serious health condition and counted in the leave entitlement permitted under the FMLA, if the situation otherwise meets the criteria for FMLA leave. In such a case, the employer may designate the leave as FMLA leave and count the leave against the employee’s FMLA leave entitlement with the workers’ compensation absence and the FMLA leave running concurrently.

What does it mean that workers’ compensation and FMLA run concurrently? FMLA leave is normally unpaid, but under these circumstances, wage replacement will be paid by workers’ compensation. It also means that a person who is out on workers’ compensation leave and FMLA leave concurrently may not be fired for absence, even if the person is out of work well beyond the employer’s cutoff absence day.

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When a worker is out of work because of a job injury and the employer believes it to be an FMLA leave as well, the employer should notify the employee, in writing, and tell the person that he or she is entitled to FMLA rights as well as being responsible for its obligations. An employer may not declare workers’ compensation leave as FMLA leave retroactively if it knew or should have known that the leave qualified as FMLA leave.

The employee who is out on FMLA leave is not required to take an alternate or modified duty job. However, an employee who refuses a job he or she is capable of doing is likely to lose workers’ compensation benefits.

Many states also have state medical leave laws that may differ in some respects from federal FMLA. Employers should review these state acts as well.

Substitution of Paid Leave

FMLA final regulations permit an eligible employee to choose to substitute accrued paid leave (such as sick, personal, or vacation leave) for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave with the paid leave provided by the employer running concurrently with the unpaid FMLA leave.

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However, because leave pursuant to a workers’ compensation law is not unpaid, the regulation provides that neither the employee nor the employer may require the substitution of paid leave.

Employers and employees, however, may agree, unless prohibited by state law, to have paid leave supplement the workers’ compensation cash benefits, such as in the case where the workers’ compensation law only provides replacement income for only two-thirds of an employee’s salary.

In tomorrow’s Advisor, we’ll take a look at workers’ compensation and the ADA, and we’ll introduce a special new webinar that covers terminations of employees who have made workers’ compensation claims.

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