In the cases, I have done with workers who have been injured while at work, I have run into clients (and associated employers) who have questions about the convergence of Workers Compensation and the Family Medical Leave Act (FMLA). In short, the FMLA requires employers allow their employees up to twelve weeks of leave for valid medical reasons. This normally comes after the employee has used any sick leave (and potentially regular leave), which is normally paid leave for a short period of time. FMLA requires that employers cannot terminate employees while on that leave, but does not require they pay the employees. Most do not.  Normally, FMLA comes into play when the employee has a medical issue requiring absence from work but not related to work. That doesn’t mean FMLA cannot be used for time off work for workplace injuries, but that’s normally when workers compensation benefits take priority. Those benefits include not only time off work, but compensation of up to two-thirds of an employee’s normal wages. Sometimes, FMLA and Workers Compensation converge and that’s important to understand


            Under Worker’s Compensation Law in South Carolina, employers with four or more employees must cover their employees with worker’s comp coverage.  In the event of a workplace injury, the worker is covered regardless of fault (whether he or the employer is at fault).  This coverage is both medical coverage for the injuries sustained, and coverage of the majority of the earnings while the employee cannot work.  Once the employee is medically cleared for work, the compensation checks stop and the employee must return to work to keep his job (with the exception of being able to use regular leave or potentially sick leave with the agreement of the employer.


           When an employee is injured and cannot work, he has the right to use FMLA and is not required to make a workers compensation claim.  If he does begin FMLA, he is under the regular mandates for the twelve weeks and no requirement for pay during that time.  Obviously, the employee would rarely choose that option, and would instead file for workers comp and receive pay while unable to work.  The employer “could” begin FMLA for the employee, but the employee cannot be terminated while on workers compensation benefits and unable to work.  As a practical matter, it makes little sense for an employer to begin counting FMLA days. If the employee has a separate medical problem after returning the work, he is still authorized up to the same twelve FMLA weeks, and any prior FMLA is not counted against that time.  The only potential reason for an employer to run FMLA is the concern that the employee might continue remaining at home after being medically cleared. In that event, the employee would be at home without pay, and so that would make little sense for the employee if he is medically cleared to return to work (note: Employees can sometimes contest the determination they are able to go back to work, and if successful they will continue receiving comp checks and be able to remain at home).


          Make sure to understand your rights and seek counsel if necessary





"NOVA Medical-14" by Tom Lesser Photography is licensed under CC BY-NC-ND 2.0

Last modified on Thursday, 21 October 2021 11:38

Bill Connor Orangeburg Attorney Bill Connor received his Bachelor of Arts from The Citadel in 1990, and after serving for over a decade as an Infantry Officer in the U.S. Army, including three deployments to the Middle East, he received his Juris Doctorate from The University of South Carolina in 2005. In 2012, Bill was honored to receive an AV® Preeminent™ Peer Review Rating by Martindale-Hubbell®, the top peer rating for American lawyers. Receiving this rating at such an early point in his career is unheard of among lawyers.

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