FMLA, Workers Comp Leave and PTO (Paid Time Off) Interplay

One of the common disability law issues that may arise at workplace is when an employee suffers an industrial injury, obtains FMLA leave for that injury and also goes on workers compensation leave, as instructed by his workers comp doctor. That employee may have also accrued paid time off.

Two common questions arise in this kind of situation:

1. Can the employer count FMLA and workers compensation leave concurrently?
Yes. For instance, if you are eligible for full 12 weeks of FMLA in a given year, and you also go on worker comp leave for, let’s say, 8 months, the employer may count it as you taking FMLA and have your FMLA leave exhausted during those 8 months, so that upon the expiration of workers comp leave, you will not have any FMLA leave left during that year.

2. Can the employer force that employee use PTO during his leave?
Generally, if an employee is on workers comp leave, the employer may not force and the employee cannot even elect to use PTO during that leave. (See US Dept. of Labor FMLA 2002-3, July 19, 2002).

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