The Seventh Circuit in Dotson v. BRP US Inc., No. 07-1375, 2008 U.S. App. LEXIS 5897 (7th Cir. March 21, 2008) confirmed that the FMLA permits an employer, with proper notice to the employee, to run FMLA leave concurrent with a workers' compensation absence.
Dotson argued that an employer may not run FMLA leave concurrently with workers' compensation. The court noted that the DOL regulations, 29 CFR 825.702(d)(2), specifically permit the running of FMLA leave concurrent with workers' compensation where the employee's on-the-job injury also constitutes an FMLA-covered serious health condition.
To run FMLA leave concurrent with workers' compensation, the employer, the Seventh Circuit observed, must notify the employee of this fact. The court found that BRP satisfied this notice requirement by including a statement in the company handbook that "All FMLA leave time runs concurrent with short term disability and workers' compensation or any qualifying event." The court also noted that BRP specifically notified Dotson that it had designated and, therefore, would charge his workers' compensation absence against his 12-week FMLA leave entitlement.
Comment: The FMLA generally permits an employee's workers' compensation absence to be counted against the employee's 12-week FMLA leave entitlement provided two conditions: (1) the on-the-job injury is a "serious health condition" within the meaning of the FMLA; and (2) the employer provides proper notice that it will and has designated the workers' compensation absence as FMLA leave.
The same rule applies to civil service employees covered by Title II of the FMLA. 5 CFR 630.1210.
An employer may, however, give this right away. The FMLA permits an employer to provide more generous leave rights than the minimum required by the FMLA. Sometimes employers provide more generous leave rights as part of a a collective bargaining agreement, past practice, or in the terms of a company handbook or manual. In that case, the employer would be prohibited from charging an employee's workers' compensation absence as FMLA leave.
Employer and labor organizations should carefully check applicable leave policies and practices to ensure that FMLA can be run concurrent with a workers' compensation absence.