Vacation Pay for Injury-Related Absence?

An employee re-injured his back yesterday, went to the chiropractor (who told him not to return to work for 7 days) and THEN the employee reported the injury to his supervisor. The employee is now saying that he doesn't want to receive sick pay for his days off work, he wants to use vacation time. Can he legally take vacation pay for time gone on a work related injury?


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  • kdspa,

    There are multiple issues present in your question, the answers to which depend primarily on your company’s policies and procedures. First and foremost you obviously have an accident reporting issue. Most employers and every Worker Comp carrier that I know require/expect, for good reason, employees to report work-related accidents in a timely fashion, e.g. 24-hours. Absent extenuating circumstances, it would not be improper for the employer to use some form of discipline to enforce the policy.

    When it comes to lost-time experienced by employees who suffer legitimate injury or illness on the job, think, well, lost time. That is one of the coverages that you are buying when you make you worker comp insurance premium payment. Assuming that the employee in question understands that there will be no “double-dipping,” he may want to use accrued sick leave because, in many cases, it pays more. We allow employees to use accrued sick leave on the front-end of an injury and then allow them to “buy” it back if/when the worker comp payments commence.

    Deciding whether or not to allow an employee to use accrued leave(s) during all or part of worker comp lost-time absence should be function of your company’s policies. For what its worth, FMLA allows, at the employers discretion, the mandatory use of accrued leaves as part of FMLA absences – as long as the requirement is part of a stated policy and is consistently applied.

    My non-lawyer opinion is that while it might be unwise to make the use of accrued leaves mandatory for worker-comp absences, you can allow for it.


  • I agree with Geno's assessment. In my experience it's been up to the employer's policy as to whether vacation time can be taken while off for comp. Comp pay at the rate of 66.66%, non taxable, takes effect in our state after day four of absence. Our comp policy will, however, NOT pay if the individual is collecting from another source, even his own vacation pay or sick pay. And our STD will not pay if the employee is drawing comp pay. There may be a way to beat the system, but the intent, I suppose, is that the employee not benefit monetarily from the comp absence.

    Did the employee follow your policy on reporting the accident and visiting the physician you intended for him to see?
  • KDSPA; I recommend you follow your "employee handbook". We allow our employees the use of vacation time or sick time, whenever they choose, as retroactive to a missed time or lost time due to a W/C injury. It is their awarded benefit and if they want to use hours for cash it helps us to level out the commitment and obligation factors.

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