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Workers' Compensation and FMLA

The Family Medical Leave Act (FMLA) entitles eligible employees to job protected leave for qualifying reasons. FMLA allows eligible employees to take unpaid leave for up to 12 weeks in a 12-month period.

FMLA also protects the employee's job during the leave period, and at the end of the leave an employer must return the employee to his or her original job or its equivalent. One reason an employee may go on leave is to deal with a serious health condition. Unlike workers' comp, the cause of the condition isn't relevant – it may have been work-related or not.

While both FMLA leave (assuming it's for a serious injury or some other qualifying reason) and workers' comp may run consecutively, the employer must inform the employee in writing that the leave is in fact FMLA leave.

This article will describe the differences between FMLA and workers' compensation, including situations where both may apply.

Qualifying Reasons for FMLA

Unpaid FMLA leave must be granted to an eligible employee for any of the following reasons:

  • For the birth of child, and to care for the newborn child
  • For placement with the employee of a child for adoption or foster care, and to care for the newly placed child
  • To care for the employee’s spouse, child, or parent, who has a serious health condition
  • For a serious health condition that makes the employee unable to perform his or her job

Understanding Workers' Compensation

Workers’ compensation provides for health care and income replacement. It does not necessarily provide for job protection. Some state workers’ compensation provisions do provide for job protection. In return for such benefits, workers’ compensation laws generally indicate that employees relinquish their right to sue their employers for work-related injuries.

Can My Employer Force Me to Take FMLA for a Work-Related Injury?

The practice of employers requiring employees to use FMLA to take time off work if they are injured on the job is technically legal. Under the state and federal FMLAs, an employer can count an employee's time out on workers' compensation as family and medical leave as long as the employee is out for a reason that meets the FMLA requirements as stated above. However, the employer must do its due diligence before making such a determination to make sure they are not allowing the employee to exhaust the benefits they may be eligible for because of workers' compensation laws.

Overlap of FMLA and Workers' Comp

The FMLA and workers' compensation provisions can overlap — an employee may suffer a workplace injury or illness that is a “serious health condition” under the FMLA as well. If this happens, the laws’ provisions can run concurrently. In other words, an employee may be off work receiving workers’ compensation benefits, and the time off is counted against the employee’s applicable 12-week entitlement to job-protected FMLA leave.

In situations where both the FMLA and workers' compensation laws apply, employers must provide leave under whichever law provides the greater rights and benefits to employees. Therefore, employers cannot require a worker to take time off under FMLA instead of workers' compensation if the person's injury makes them eligible for the benefits of workers' compensation.

Get a Free Review From a Workers' Comp Attorney

Workplace injuries can result in time off work, medical bills, and other complications, but your employer is required to carry workers' compensation insurance for such events. It can all be quite confusing, particularly if your injuries are severe. If you have suffered an injury on the job and are in need of skilled legal assistance with a potential workers' compensation claim, you can have your claim reviewed absolutely free and with no obligations.

Next Steps
Contact a qualified workers' compensation attorney to make sure
your rights are protected.
(e.g., Chicago, IL or 60611)

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