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Can an Employer Require that FMLA be Used While on Workers' Comp Disability?


We are frequently asked whether an employer can require an employee out on workers' comp disability to use leave under the Family and Medical Leave Act (FMLA). It's a legitimate question but one with limited real application.

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:

  • The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;

  • To care for a spouse, son, daughter, or parent who has a serious health condition;

  • For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or

  • For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

An eligible employee may also take up to 26 workweeks of leave during a "single 12-month period" to care for a covered servicemember with a serious injury or illness when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. The "single 12-month period" for military caregiver leave is different from the 12-month period used for other FMLA leave reasons.


Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. That means an employee may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer's operations. If FMLA leave is for the birth, adoption, or foster placement of a child, the use of intermittent or reduced schedule leave requires the employer’s approval.


Under certain conditions, employees may choose, or employers may require employees, to "substitute" (run concurrently) accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy.


However, the FMLA only applies to employers that meet certain criteria. A covered employer is a:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;

  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or

  • Public or private elementary or secondary school, regardless of the number of employees it employs.

And, only eligible employees are entitled to take FMLA leave. An eligible employee is one who:

  • Works for a covered employer (defined above);

  • Has worked for the employer for at least 12 months;

  • Has at least 1,250 hours of service for the employer during the 12- month period immediately preceding the leave*; and

  • Works at a location where the employer has at least 50 employees within 75 miles.

Upon return from FMLA leave, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.


If an eligible employee works for a covered employer and is injured on the job resulting in a serious health condition, the employer may run FMLA concurrently (at the same time) with workers comp disability. In other words, the time off may be counted against the employee’s applicable 12-week entitlement to job protection. In situations where both the FMLA and workers' compensation laws apply, employers must provide leave under whichever law provides greater rights and benefits to employees. Therefore, employers cannot require a worker to take time off under FMLA instead of workers' compensation if the person's injury makes them eligible for the benefits of workers' compensation.


This is confusing, but we deal with it all the time. Contact the workers' compensation lawyers at Richardson Maples today for a free initial consultation regarding a workers' compensation claim. We're happy to answer any questions and ensure that injured workers are treated fairly.