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What if reason for taking FML found to be Workers' Comp?

CourtHRCourtHR 8 Posts
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I'm new to the forum so forgive me if this question has been asked and answered already. We have an employee who originally went out on FML for surgery that was required on her shoulder. It was later determined that it qualified under workers' comp. My question is, does the FML run concurrent with the WC - is she still charged against FML for the time she is out, or should all the time she's out be considered WC, retroactive to the time she first went out on FML? And none of the time out counted as FML?

Thanks in advance for your help.

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  • Don DDon D 9,834 Posts
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    Employers are at liberty to run the leaves concurrently. In fact, doing that is suggested by labor law attorneys and other presenters in seminars I've attended over the years. Running the leave concurrently prevents what is called 'stacking leave', as in the case of an employee who might be out due to a comp injury, then out for all of his vacation, then out for 12 weeks of FMLA.

    The company has the right to set and follow this as a policy if it so chooses but must do so consistently or run the risk of losing an FMLA discrimination charge for inconsistency.

    One word of caution. Typically, workers' comp laws in states allow the employer to require the employee to return to restricted duty if such is available and is in accord with treatment plans; whereas, FMLA prohibits requiring that.

    Your policy should be clear, consistent and published so there are no surprises and I would also advise the affected employee in writing, under the assumption that I would have to produce that letter later.







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  • CourtHRCourtHR 8 Posts
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    Thanks all for replying so quickly and with very helpful information. x:-)

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  • sonnysonny 2,117 Posts
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    Whether or not FMLA runs concurent with WC is determined by your company policies (unless there are some state laws I am not aware of) Here it does and I think most forumites will tell you it does at their locations as well.
    Welcome to the Forum.
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