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Run FMLA Concurrently with Workers' Compensation Leave

    Client Alerts
  • March 12, 2010

We recently received a letter from a plaintiffs' lawyer representing an injured employee who filed a contested case proceeding under the Workers' Compensation statutes. The letter was in response to the employee's receipt of the Family and Medical Leave Act medical certification form, and a request from the employer that the employee provide information to certify eligibility for FMLA leave. In the letter, the lawyer claimed that his client could not be placed on FMLA leave because he suffered a workplace injury, and that he was refusing to provide the requested medical certification. He threatened to file a Workers' Compensation retaliation claim if his client was placed on FMLA leave.

Of course, the employee's attorney was mistaken. The FMLA specifically provides that leave under the Act runs concurrently with other forms of legally protected absences from work, including Workers' Compensation leave. Any eligible employee who suffers a Serious Health Condition as defined under the FMLA as the result of a workplace injury should immediately be placed on FMLA leave. By running the FMLA leave concurrently with the Workers' Compensation leave, the employer can eliminate the potential that an employee returning from Workers' Compensation leave claims the full FMLA leave entitlement for an unrelated absence.

How should the employee's refusal to return the medical certification be treated? Normally, this refusal would result in a disqualification of the employee for FMLA leave. In this case, however, the employer knew from the Workers' Compensation process that the absence constituted a Serious Health Condition, and wanted to place the employee on FMLA leave. We advised the employer to send the FMLA designated leave form and advise the employee that leave taken from the date of the accident would be treated as qualifying FMLA leave, even in the absence of medical certification.

The interplay between FMLA and Workers' Compensation can create tricky legal issues for employers. In the end, FMLA and COBRA are federal laws, and they preempt state Workers' Compensation anti-retaliation and other employee protections. As long as employers act in conformance with federal law, and apply the same rules to all employees absent from work regardless of the reason for the absence, threats of sanctions under Workers' Compensation laws are generally groundless.