OLR RESEARCH REPORT
December 22, 2005
FAMILY AND MEDICAL LEAVE AND WORKERS' COMPENSATION
By: John Moran, Associate Analyst
You asked if an employer can make an employee's time out on workers' compensation count as family and medical leave.
Under the state and federal Family and Medical Leave Acts (FMLAs) an employer can count an employee's time out on workers' compensation as family and medical leave as long as the employee is out for a reason that meets the FMLA requirements.
Both the state and federal FMLAs specify in regulation that either the employer or the employee may choose to have the employee's FMLA leave run concurrently with a workers' compensation absence when the injury is one that meets the “serious health condition” criteria of FMLA (29 CFR 825.207 and Conn. Agencies Reg. § 31-51qq-18). In general, an injury that keeps an employee out of work on workers' compensation will also qualify as a serious health condition. A serious health condition is defined under both FMLAs as an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider or inpatient care at a hospital or similar facility.
If the employee or the employer decides to make a workers' compensation absence a family and medical leave, then the employer cannot charge the employee for paid sick leave or any other form of employee compensation for time off. If the employer designates the workers' compensation time as FMLA, he must notify the employee in writing.
Officials at the state Workers' Compensation Commission noted that they often tell people on workers' compensation that concurrently being on family and medical leave has advantages for the worker, such as maintaining health benefits. Under federal FMLA, the employer must keep an employee who is out on workers' compensation covered under any company-provided health insurance plan. Under federal and state workers' compensation law, private-sector employers are not required to continue such coverage for an employee on workers' compensation. The health coverage lasts as long as the state or federal FMLAs permit.
(Until 1993, Connecticut had a law that required private-sector employers to maintain employee health benefits for workers out on workers' compensation. But the Connecticut Supreme Court ruled the law invalid after the U.S. Supreme Court decided an almost identical Washington, D.C. law was preempted by the federal Employee Retirement Income Security Act (ERISA) (see OLR report 95-R-1417). The state law requiring the maintenance of health coverage for public employees on workers' compensation remains in force since ERISA does not apply to public employees.)
Furthermore, both FMLA laws provide more job protection than workers' compensation law. Under the FMLAs, the employer must give the employee his job back when he returns from leave. There are limited exceptions to this protection for certain highly-paid “key” employees or employees who would have been laid off regardless of taking leave, i.e. their entire unit or plant is closed.
Workers' compensation law does not protect the job someone left due to injury, but it does prohibit an employer from discriminating against an employee simply because he filed a workers' compensation claim.