Question: If an employee is receiving workers’ compensation benefits, can we allow them to supplement their workers’ compensation benefits with accrued medical, vacation or PTO leave in order to meet 100% of their regular base pay?
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Workers compensation pays a portion of an employees pay in the states we operate (Kansas and Oklahoma). Can the company require an employee to use their leave to for the percentage that workers compensation does not pay in these states? If not, can the employee elect to cover their absence by using any available funds if they chose to?
Answer from the experts at HR.BLR.com: In addition to issues of pay during a workers compensation leave, your question also implicates the Family and Medical Leave Act (FMLA). First, if an employee is injured on the job and out of work, and if the employee and the injury qualify for FMLA leave, then the employer may designate the time out due to a work-related injury as FMLA leave.
The FMLA leave will run concurrently with the workers compensation leave. Generally, under the FMLA, an employer can require the substitution of accrued, paid leave for unpaid FMLA leave. There are, however, different rules when an employee is receiving workers compensation benefits. Detailed information is available at HR.BLR.com. For your convenience, we’ve copied that information here.
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 employer designates the leave as FMLA leave. 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, 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 accrued paid leave.
Second, you asked specifically about any state requirements for Kansas and Oklahoma. As a general rule, employers are free to establish vacation or paid time off policies that include when paid time off may be used. We are not aware of any Kansas or Oklahoma law that would prohibit an employer and employee from agreeing to use paid time off to make up the difference between workers compensation wage replacement benefits and the employee’s regular pay at the request of the employee.