When helping school districts navigate through workers’ compensation issues, we are often asked the same question: after a workplace injury, can the school district run Family and Medical Leave Act (“FMLA”) leave concurrently with an employee’s absence covered by Workers’ Compensation?
To get the answer, it is helpful to first understand FMLA’s basic rules. FMLA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year, with continuation of group health insurance coverage. 29 U.S.C. §2614(c)(1); 29 C.F.R. §825.200(a). FMLA leave can only be taken for specific qualifying medical reasons, such as for a “serious health condition” that makes the employee unable to perform the functions of his/her job. 29 C.F.R. §825.112(a)(4). “Serious health condition” includes any injury, impairment or physical condition that involves inpatient care or continuing treatment by a health care provider. 29 C.F.R. §825.113(a). Thus, an injury and absence covered by Workers’ Compensation, which requires an employee to receive continuing treatment, is a “serious health condition” under the FMLA. Such Workers’ Compensation absence can therefore be designated as FMLA leave and counted against the employee’s FMLA leave entitlement.
Stated differently, the school district can and should run FMLA leave concurrently with an employee’s Workers’ Compensation absence (unless doing so is prohibited by a contrary collective bargaining agreement provision or Board Policy – discussed below).
To run them concurrently, the school district must first properly notify the employee that his/her Workers’ Compensation absence will be counted as FMLA leave. In that regard, it is the school district’s responsibility to designate leave as FMLA-qualifying and give notice of the designation to the employee. 29 C.F.R. §825.300(d). Generally, this designation must occur as soon as the school district has acquired knowledge that the leave is being taken for an FMLA-qualifying reason. 29 C.F.R. §825.301(a). The U.S. Department of Labor (“DOL”) recently issued two opinions, FMLA2019-1-A and FMLA2019-3-A, opining that an employer cannot delay the designation of FMLA-qualifying leave, even if the employee would prefer to delay the designation, and even if a collective bargaining agreement provides otherwise. Thus, according to the DOL, the school district not only can, but must designate FMLA-qualifying leave when it has information that the workplace injury qualifies as a “serious health condition.”
Yet contrary to the DOL’s view, case law and FMLA’s plain statutory language suggest that employees could decline to use FMLA leave to which they are entitled and may do so in a manner which does not waive their right to FMLA. Thus, as mentioned above, school districts must be mindful of their Board Policy and collective bargaining agreements, which allow employees to utilize FMLA leave after exhausting other paid leave, such as leave covered by Workers’ Compensation. If confronted with this situation, school districts should consult their legal counsel to determine if doing so is permissible in light of DOL’s position on the matter.
Assuming no provision to the contrary, when an employee is absent because of an injury covered by Workers’ Compensation, the best practice is for the school district to send written notice to the employee designating their leave as FMLA-qualifying immediately upon commencement of the leave. This not only ensures that the district follows FMLA requirements, but also limits the amount of time an employee can remain off work (by eliminating stacking of leave). Moreover, proper designation of FMLA leave allows the school district to cancel employees’ health insurance benefits following exhaustion of their FMLA leave (unless a collective bargaining agreement requires continuation of such benefits). In that regard, Ohio law does not require employers to maintain employees’ health insurance coverage after the expiration of their FMLA leave. In that event, if employees remain on leave covered by Workers’ Compensation, they will only be able to obtain health insurance coverage from the school district through COBRA.
It is also important for school districts to ensure that administrators who typically first receive notice of workplace injuries are properly trained on what qualifies as a “serious health condition” – so that timely designations are made.
Finally, it should be noted that employees’ receipt of Workers’ Compensation payments (such as temporary total compensation) precludes them from electing, and prohibits the school district from requiring, substitution of any form of accrued paid leave for part of the absence covered by such payments. 29 C.F.R. §825.207(e) (“because the workers’ compensation absence is not unpaid, the provision for substation of the employee’s accrued paid leave is not applicable”). Stated differently, substitution of paid leave can only be required by the school district if the absence covered by Workers’ Compensation is unpaid.
Navigating the intersection of Workers’ Compensation and the FMLA (not to mention the ADA) may seem overwhelming. However, understanding the basic concepts outlined above helps answer the often-posted question: FMLA leave and a Workers’ Compensation absence can run concurrently, provided the reason for the absence is due to an FMLA-qualifying “serious health condition,” the school district properly notified the employee that the leave would be counted as FMLA leave, and absent a Board Policy or collective bargaining agreement indicating otherwise.