If you’re collecting workers’ compensation after a job injury, you generally do not get to choose whether to use FMLA at the same time. Your employer can require FMLA leave to run concurrently with your workers’ comp absence, which starts the 12-week federal clock the moment you leave work, as long as you’re eligible for FMLA and the employer gives you the right written notices. That is the standard approach, and most employers use it.
First, Are You Even Eligible for FMLA?
None of this matters if FMLA doesn’t cover you. Three requirements have to be met: you must have worked for your employer for at least 12 months, you must have logged at least 1,250 hours during the 12 months before leave started, and your worksite must have 50 or more employees within a 75-mile radius.1eCFR. 29 CFR 825.110 – Eligible Employee Miss any one of those and your employer has no federal obligation to hold your job while you recover.
The 12 months don’t need to be consecutive. The 1,250-hour threshold works out to roughly 24 hours a week over a year, so full-time workers usually clear it. Part-time workers should check their hours before assuming they’re covered.
How Concurrent Leave Actually Works
Federal regulations directly address the overlap. When a workplace injury qualifies as a serious health condition, the employer can designate the workers’ compensation absence as FMLA leave, and the two clocks run together.2eCFR. 29 CFR 825.702 – Interaction with Federal and State Anti-Discrimination Laws Most employers do this because it limits how long they must hold your position open.
A serious health condition includes any injury that requires inpatient care or ongoing treatment by a healthcare provider, and most workplace injuries that keep someone out for more than a few days meet that threshold. Once the employer makes the designation, your 12-week bank drains regardless of whether you’d rather save it for something later.
In practice, workers’ compensation handles the money side, paying a portion of your lost wages and covering your medical bills, while FMLA layers on the job protection that workers’ comp doesn’t reliably provide. Both operate in parallel and do different jobs.
The Notices Your Employer Has to Give You
The concurrent designation is not automatic. To legally count workers’ compensation time against your FMLA entitlement, your employer must follow specific steps. Within five business days of learning about your leave, it has to give you a Notice of Eligibility and Rights and Responsibilities telling you whether you qualify and what documentation to provide.3eCFR. 29 CFR 825.300 – Employer Notice Requirements
The employer must also issue a separate Designation Notice once it has enough information to confirm your leave qualifies. That notice has to state in writing that your time off will count against your 12-week FMLA entitlement, and it must arrive within five business days of the employer having enough information to make the call.3eCFR. 29 CFR 825.300 – Employer Notice Requirements
Skip the steps and the employer can’t retroactively count that time against your FMLA bank. This is where employers most often trip up, and where paying attention to paperwork can protect you. If you never received a written designation notice, you may still have your full 12 weeks available even after returning from a workers’ comp absence.
Can They Also Make You Use Vacation or Sick Days?
Not while workers’ comp is paying you. Because a workers’ compensation absence is not considered unpaid leave, neither you nor your employer can require substitution of accrued paid leave during that period.4eCFR. 29 CFR 825.207 – Substitution of Paid Leave
There is one exception. You and your employer can voluntarily agree to use paid leave to supplement workers’ comp benefits, where state law permits it, which sometimes makes sense because workers’ comp typically replaces only about two-thirds of your salary.4eCFR. 29 CFR 825.207 – Substitution of Paid Leave The key word is agree. Your employer can’t unilaterally drain your paid time off while the workers’ comp checks are still coming.
That changes if the workers’ comp payments stop, for example because you turn down a light-duty assignment. Once the payments cease, the leave becomes unpaid, the normal substitution rules apply again, and your employer can require you to use accrued sick or vacation time for the rest of your FMLA leave.
What You Get in Return: Real Job Protection
This is why the concurrent designation matters. Workers’ comp pays your bills but does little to guarantee your actual job. State workers’ comp laws focus on medical costs and wage replacement. FMLA, by contrast, guarantees your right to return to the same position you held before your leave, or one virtually identical in pay, benefits, duties, seniority, and working conditions.5eCFR. 29 CFR 825.215 – Equivalent Position
Without an FMLA designation, an employer could fill your role permanently while you recover and owe you no federal duty to put you back. So concurrent running cuts both ways. You get reinstatement rights during the overlap, but you also burn through those rights faster than if the two protections ran separately.
Your group health insurance also continues on the same terms as if you were still working. Family coverage stays family coverage, and dental, vision, and mental health benefits carry over.6U.S. Department of Labor. Fact Sheet #28A: Employee Protections under the Family and Medical Leave Act You still owe your share of the premiums, and because they can’t be deducted from a workers’ comp check, you’ll need to arrange payment with your employer.7U.S. Department of Labor. Family and Medical Leave Act Advisor – Premium Payments If you fall behind, coverage can’t be cut off immediately. Your payment must be more than 30 days late, and the employer must mail written warning at least 15 days before dropping coverage.8U.S. Department of Labor. Family and Medical Leave Act Advisor – Employee Failure to Pay
If Your Doctor Clears You for Light Duty
At some point your doctor may release you to limited work, and your employer may offer a light-duty position. Federal regulations say you’re permitted but not required to accept it.2eCFR. 29 CFR 825.702 – Interaction with Federal and State Anti-Discrimination Laws You can stay on FMLA leave until you’re able to return to your original job or until your 12 weeks run out.
The catch is financial. If your state workers’ comp program cuts off wage replacement once you decline a medically approved light-duty offer, you lose that income.9U.S. Department of Labor. Wage and Hour Division FMLA-55 Opinion Letter Your job stays protected under FMLA, but you go from receiving workers’ comp to receiving nothing unless you start using accrued paid time off.
Accepting light duty voluntarily doesn’t waive your FMLA rights. You still have the right to be restored to your original position, or an equivalent one, once fully recovered, though that right expires at the end of the applicable 12-month FMLA leave year.10eCFR. 29 CFR 825.220 – Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights For many workers this is the practical choice, because it keeps the workers’ comp checks flowing while preserving reinstatement rights.
What Happens When the 12 Weeks Run Out
Once your FMLA is exhausted, the federal reinstatement guarantee is gone. Your employer no longer has to hold your job. Workers’ comp payments continue based on your medical status, but they don’t protect your position. This is the point where injured workers are most exposed.
The Americans with Disabilities Act may pick up where FMLA leaves off. If your workplace injury qualifies as a disability, additional unpaid leave can be a reasonable accommodation, even after FMLA is exhausted. The EEOC has stated that compliance with FMLA does not automatically satisfy an employer’s ADA obligations, and the fact that additional leave exceeds what FMLA allows is not, by itself, proof of undue hardship.11EEOC. Employer-Provided Leave and the Americans with Disabilities Act
ADA protection requires an interactive process. You or your doctor need to communicate how much more time you need and why, and the employer has to genuinely evaluate whether granting it would create an undue hardship, weighing factors like expected duration, staffing impact, and the feasibility of temporary coverage.11EEOC. Employer-Provided Leave and the Americans with Disabilities Act The ADA applies to employers with 15 or more employees.
Retaliation Is Prohibited
Federal law bars your employer from retaliating against you for using FMLA leave. That means no firing, demoting, cutting hours, or using your leave as a negative factor in promotions or discipline. Your FMLA absences also can’t be counted against you under a no-fault attendance policy.12U.S. Department of Labor. Fact Sheet #77B: Protection for Individuals under the FMLA
Workers’ compensation retaliation protections are separate and set by state law, and they vary. Most states prohibit firing someone solely for filing a workers’ comp claim, but the strength of the protection and the remedies differ. If you suspect retaliation tied to either your FMLA leave or your workers’ comp claim, keep records of any negative employment actions and their timing. The closer the adverse action follows your protected activity, the stronger the circumstantial case.