Published Date: 01/20/2014
By Reneé Watkins
Can employers run workers’ compensation concurrent with FMLA?
YES – When an employee’s workers’ compensation injury meets the definition of a serious health condition under the Family and Medical Leave Act (FMLA) and the employee is eligible for FMLA, employers should run the FMLA concurrently with the workers’ compensation. Although FMLA has a provision allowing for retroactive designation if there is no harm to the employee, it is preferable to designate FMLA and follow proper employer notice requirements when the employee is eligible. It avoids having to address FMLA notice or retroactive designation after the employee has been out for a long period of time and may have retained an attorney.
Although your FMLA policy may require employees to exhaust paid leave time before going on unpaid leave, you cannot require this where workers’ compensation and FMLA run concurrently. The FMLA regulations state that the employer may agree to an employee’s request to supplement workers’ compensation pay if the state’s laws permit it.
If you have questions regarding this issue, please contact a member of CAI's Advice & Resolution Team at 919‑878‑9222 or 336‑668‑7746.