The Essential Guide to Family & Medical Leave

chapter 11 | how other laws affect FMLA leave | 271
Tip
An employee who is out on workers’ comp leave probably has a serious
health condition under the FMLA. Under the laws of many states, an
employee becomes entitled to temporary disability benefits under
workers’ comp only after being out of work for a specified waiting period
(typically, at least three days). And, an employee seeking workers’ comp
benefits must be seen by a doctor. This adds up to incapacity of more
than three days with continuing treatment by a health care provider—a
serious health condition. The upshot for managers is this: Whenever an
employee is out of work and receiving workers’ comp benefits, you should
designate that time as FMLA leave.
Workers’ comp is, of course, a very detailed and complicated system,
which varies greatly from state to state. Our purpose here is not to explain
your obligations under workers’ comp law, but to highlight the areas where
your obligations under the FMLA and workers’ comp are most likely to
overlap: light-duty assignments and reinstatement.
Light Duty
Under the FMLA, an employee with a serious health condition is entitled
to leave until he or she is once again able to do the original job or one that
is nearly identical to it, up to 12 weeks. The employee doesn’t have to come
back early to a different position or “light duty” if he or she is capable of
lesser tasks or responsibilities.
Workers’ comp is different. If the company offers a light-duty position
that the employee is medically able to perform, the employee typically has
to accept that position or lose his or her benefits under workers’ comp. If
the employee is also covered by the FMLA, the employee remains entitled
to up to 12 weeks of job-protected leave—but could lose the workers’ comp
benefits if the employee chooses not to take the light-duty position.
If an employee decides to accept a light-duty position while on FMLA
leave, the employee is entitled to 12 weeks of total time out of his or her
original position—the time the employee spends out of work entirely plus
the time the employee spends in the light-duty position. While the employee