FMLA and Workers Compensation: Can You Get Both at the Same Time?

The Family Medical Leave Act (FMLA) is designed for employees who need to take time off due to medical reasons. While workers’ compensation is for employees who got injured on the job. That said, there is no law that says you can’t avail of FMLA if you are on workers’ compensation.

Yes, FMLA and workers’ compensation can run concurrently with each other. And your employer cannot force you to take an FMLA leave if you qualify for workers’ compensation. In such cases, the law requires them to give whichever would provide a greater benefit to the employee.

Understanding FMLA

Signed in 1993, the Department of Labor defines FMLA as:

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

Based on the above, the main purpose of FMLA is to ensure that you still have a job to go back to even if you take time off work. Your employer cannot fire or demote you just because you took an extended leave.

But you cannot just file for FMLA for any reason. The law clearly states FMLA may only be availed under the following circumstances:

  • birth and  care of the employee’s newborn child
  • placement of a child for adoption/foster care with an employee
  • to care for an immediate family member with a serious health condition
  • to take medical leave when the employee is unable to work because of a serious health condition

FMLA is an unpaid leave so you may need to plan your finances beforehand. It can also only last for up to 12 weeks. If your leave goes beyond that, your employer can legally fire you.

Who Can Avail of FMLA?

The Labor Department’s definition of FMLA says “eligible employees of covered employers”. This means that not everyone can avail of FMLA.

To be eligible for FMLA, an employee must:

  • have worked for their employer for at least 12 months and at least 1,250 hours of compensable time over the last 12 months;
  • works at a location where the company employs 50 or more employees within 75 miles.

In addition to the federal law, some states have also adopted their own version of FMLA. To determine your eligibility, check both your state laws and federal FMLA laws.

Discussing getting FMLA and workers compensation at the same time.

How Workers Compensation Works

By law, employees who got injured while doing their job are eligible for workers’ compensation. How much they’ll get and how long it will last depends on the severity of their disability.

Under workers comp, there are four types of disability:

  • Temporary partial disability
  • Temporary total disability
  • Permanent partial disability
  • Permanent total disability

If an injured employee receives a temporary disability rating, they can receive workers’ compensation until they are able to earn what they used to before the injury. Or the state’s time limit is up. Whichever comes first. Each state, however, has varying rules on workers’ comp time limit.

As for permanent disabilities, the employee may be eligible for lifetime benefits depending on their condition.

Regardless of the type of disability, employees who qualify for workers’ compensation are entitled to a job-protected leave with full pay. This is to allow them to recover from their injuries. Also, an employer cannot force an employee to go back to work without the doctor’s approval.

When FMLA and Workers Compensation Apply

As you may have concluded by now, both FMLA and workers comp allow an employee to take time off work.

But with worker’s comp, you get paid even when you’re not working. The same cannot be said for FMLA.

Workers comp leave, however, do not necessarily provide for job protection. Though some states have provisions that prevent the employer from firing an employee who availed of workers comp.

If an employee has to take a medical leave due to a work-related injury, they may avail of FMLA and workers comp at the same time. Provided that they meet the eligibility requirements for both. The employee can receive workers’ compensation and their leave will be counted under FMLA. This way, they can focus on recuperating rather than rushing back to work for fear of getting fired.

In such cases that both laws overlap, the employer shall provide that which offers a greater benefit to the employee. This is why they can’t force an employee to apply for FMLA if they clearly qualify for worker’s comp.

What to Do When Your Employer Forces You to Take FMLA Instead of Worker’s Comp

It’s not uncommon for employers to force injured employees to just avail of FMLA instead of workers comp. After all, a workers’ comp claim can increase an employer’s insurance premium which means additional cost for the business.

If this happens to you, it’s time to hire an experienced worker’s compensation lawyer like Victor Malca. He had been helping injured workers in Florida for over two decades. He can help you negotiate with your employer too or take appropriate legal action so you can get the benefits you deserve. Contact us now for a free consultation.

VICTOR MALCA – Florida Workers Compensation & Social Security Disability Attorney

Victor Malca P.A. has over 27 years of litigation experience in Workers Compensation and Social Security Disability lawsuits. His experience and continued success when fighting for his clients puts him among the most trusted workers’ compensation attorney’s in Florida. He specializes in representing injured workers on compensation benefit cases and disabled individuals claiming lost social security disability benefits.

Book a free consultation today. Our unwavering advocacy for employee rights and privileges are recognized by our past clients across South Florida.

About The Author

Judy Ponio is a writer and editor for the Victor Malca Law P.A. website and blog. She enjoys helping people in need with questions about social security disability and workers compensation law. She has a passion for helping those in need and the elderly with accurate legal information that can make a positive difference in their lives.