The Difference Between FMLA and Workers’ Comp: When Do Both Apply?

Compare FMLA protections to workers’ compensation benefits. Learn when an injured worker may choose to use both programs.

The Family and Medical Leave Act (FMLA) is a federal law that allows eligible workers to take up to 12 weeks of job-protected leave in a given year.

FMLA leave is unpaid, although your employer can require you to use any available vacation or sick time while out on FMLA.

If you suffer a work-related injury, you’ll file a workers’ compensation claim with your employer’s insurance company. Benefits include coverage for medical expenses and wage replacement compensation.

If a workplace injury results in the inability to work, the injury victim may qualify for both FMLA and workers’ comp coverage. Your employer cannot require you to take FMLA leave if your work injury keeps you from working, but you have that option.

An overlap of FMLA and workers’ compensation laws means that workers can receive compensation while enjoying extra job protection.

Comparing FMLA to Workers’ Comp

FMLA Entitlements

The Family and Medical Leave Act is administered by the U.S. Department of Labor (DOL). The Act provides eligible employees with up to 12 weeks of unpaid leave from work in a 12-month period.

Qualifying for FMLA requires:

  • You’ve worked for the same employer for at least 12 consecutive months
  • Your employer employs at least 50 employees within 75 miles
  • You’ve worked at least 1,250 hours over the prior year

Eligible workers can receive 12 weeks of leave for any of the following:

  • The birth of a new child, adoption of a child, or foster care placement of a child
  • To care for certain family members who have a severe health condition
  • For a serious health condition of the employee

The time you’re away from work under the FMLA is job-protected. Once you return to work, your employer must give your same job back or provide an equivalent position, if one is available.

FMLA leave laws do not fully guarantee protection from job loss. An employee on FMLA leave is not protected from actions that would have affected them if they were not on leave. For example, if your department or shift is eliminated.

Workers’ Compensation Benefits

All 50 states have their own workers’ compensation laws, requiring employers to carry workers’ comp insurance to protect employees who suffer a work-related illness or injury.

Workers’ comp covers medical expenses for the work-related injury and wage replacement benefits. Unlike with the FMLA, there is no cap on how much time you can take off because of the work injury, so long as your doctor says you are unable to work.

But also like FMLA leave, workers’ comp laws don’t necessarily guarantee work protection.

It’s against the law for an employer to fire you for filing a workers’ compensation claim.

However, most states say that it’s lawful for an employer to:

  • Eliminate an injured worker’s position
  • Lay off the injured worker
  • Bring the injured worker back in a job position different from the one they had before the injury

Some state laws do protect an injured employee’s job if they have to miss work because of a work accident, to the extent the employer can afford to keep the job open.

When FMLA and Workers’ Comp Overlap

There are times when you can qualify for FMLA and workers’ compensation leave, more commonly called workers’ comp short-term disability.

For example, you may suffer a work injury that makes it impossible for you to perform your job. Here, you are entitled to file a claim for workers’ compensation benefits. You could also take FMLA leave provided that you meet all qualifications under the statute.

If FMLA and workers’ comp overlap, the two options run concurrently. This means an injured employee could receive workers’ comp benefits, and time off is counted against the employee’s 12-week FMLA leave.

Once you’ve exhausted the 12 weeks of FMLA leave, you won’t qualify for more FMLA leave that year, even if you have a new baby or a family member needs care.

Employers Can’t Force Workers to Use FMLA

However, an injured worker does not have to take FMLA leave if they are receiving workers’ comp benefits. Employers cannot force injured workers to utilize FMLA leave.

There are times when it’s in your best interest to take FMLA leave following a work injury.

Recall that most states’ workers’ comp laws don’t protect an injured employee’s job following a work accident. However, leave under the FMLA is job-protected. Therefore, if you’re hurt at work and fear that your injury may result in a disruption of your employment status, you may want to use FMLA leave to protect your job.

Steps for Requesting FMLA Leave

According to the Employee’s Guide to the Family and Medical Leave Act, there a four key steps involved in successfully requesting FMLA leave.

  1. Verify Eligibility: Verify that your employer is subject to FMLA and you have worked enough to qualify for leave.
  2. Notify Your Employer: Notice should be given at least 30 days in advance of your anticipated time off. If the leave is necessitated by a sudden event, like an accident, let your employer know as soon as possible.
  3. Employer Communication: Your employer must let you know within five days of your first request if you are eligible for FMLA, and if you’ll need a certification form. The employer must also tell you your rights and responsibilities under FMLA.
  4. Complete Certification: The Department of Labor provides seven different certification forms, depending on your reason for requesting FMLA. For example, there is a form to use when leave is needed because of the employee’s medical condition, and a different form if the leave is requested to care for a family member.

Get the Legal Advice You Need to Protect Your Rights

Don’t let your employer push you into using FMLA for a workplace injury. You are never obligated to use FMLA for a work injury, and cannot be legally prevented from filing a workers’ compensation claim.

If you have to take time off of work because of a workplace injury and you’re worried about keeping your job, a workers’ comp lawyer can help you exercise your FMLA rights, if that is in your best interest.

Your employer is not allowed to pressure you or retaliate against you for filing a workers’ compensation claim or requesting FMLA leave.

Most workers’ comp attorneys provide free consultations, and most states limit the attorney fees you can be charged for a worker’s comp claim.

Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>