Should we designate FMLA during time off for a work-related injury?

If the injury qualifies as a “serious health condition” under FMLA and the employee is eligible, you should designate the time. An employee has a legal entitlement to FMLA, and your failure to designate the time does not take away this right. The injured employee could obtain the FMLA protections by claiming that you should have made the designation.

Note that an employee working a “light duty” job can only have absences counted as FMLA leave. If the employee is actually working, even in a light duty job, the time is not “leave” and cannot be subtracted from the FMLA entitlement.

Also, if an employee is receiving WC benefits, he or she cannot be required to use paid vacation or other paid time off for the absences. However, employers and employees may voluntarily agree to use paid time off during these absences. For instance, if an employee is collecting 2/3 wage benefits, he may want to use a few hours of vacation each week to increase take-home pay or to pay for health insurance premiums.

Finally, an employee who qualifies for FMLA may refuse to accept a light duty job. In many states, this refusal will result in a loss of WC benefits. However, the employee still has a right to unpaid leave under FMLA. Many employers will consider the refusal to accept a light duty position as job abandonment, resulting in termination, but you cannot terminate an employee for job abandonment while the individual is protected by the FMLA.