FACT OR FICTION: FMLA and workers’ compensation may run concurrently

That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

Earlier this week, I spoke at the SHRM Lehigh Valley Annual Conference on leave issues under the Americans with Disabilities Act and the Family and Medical Leave Act. During the course of our discussion, not only did we address the interplay between these federal laws, but we also touched upon the impact of workers’ compensation laws.

One question that came up is whether an employer can require that an employee take FMLA leave concurrently with workers’ compensation leave.

Absent a collective bargaining agreement provision to the contrary, the answer is yes. But here are a few other things you should know about the interplay (all of this comes from a Department of Labor Opinion letter):

Where an employee is collecting workers’ compensation, which is also a serious health condition under the FMLA, the employer cannot require the employee to substitute any paid vacation, personal, or medical or sick leave, for any part of the absence that is covered by the payments under the workers’ compensation plan. Similarly, an employee is precluded from relying upon FMLA’s substitution provision to insist upon receiving workers’ compensation and accrued paid leave benefits during such an absence. However, the employer and employee may be able to agree to paid leave to supplement the workers’ compensation replacement income.

An employer may not recover health insurance premiums from an employee taking FMLA and workers’ compensation concurrently, if the employee does not return to work. Also, an employer may not recover any non-health benefit premiums paid during a FMLA-designated temporary disability leave or workers’ compensation absence, as opposed to during unpaid leave.

If the employer designates workers’ compensation as FMLA leave, then the employee is entitled to all employment benefits accrued prior to the date on which the leave commenced.

Now, if you’ll excuse me, I’m trying to figure out what the fox says.