Workers Compensation

Will My Workers’ Compensation Leave Take Away From My FMLA Leave?

By Sachi Barreiro, Attorney, University of San Francisco School of Law
Learn whether your FMLA leave will be affected by your workers' comp leave.


I’ve been off work for a couple weeks due to a work-related injury, and my doctor expects me to be out for several more weeks. I’m wondering if this will count against my available FMLA leave. My wife and I are expecting a baby later this year, and I was hoping to take at least a couple of months off right after the birth. Will I still be able to take leave under the FMLA?


The Family and Medical Leave Act (FMLA), which applies to private employers with 50 or more employees, provides up to 12 weeks of unpaid leave for employees to recover from their own serious health conditions, to care for a family member with a serious health condition, or to bond with a new child. If your work injury qualifies as a “serious health condition” under the FMLA, your employer can count your workers’ compensation leave against your FMLA leave.

A serious health condition is one that is chronic, requires hospitalization, or leaves a worker incapacitated (for example, unable to work) for more than three days and requires continuing treatment by a medical provider. Because you’ve been off work for several weeks and you’re under the care of a doctor, your condition will likely qualify as a serious health condition.

Any time that you take off for your work injury will likely be deducted from your 12-week allotment under the FMLA. For example, if you need eight weeks off for your injury, you will have only four weeks left to care for your new child.

To take this time off, though, you must still meet the eligibility requirements of the FMLA by the time of your child’s birth. Among other things, you will need to have worked for your employer for a year and have worked 1,250 hours in the 12 months before the leave. Paid or unpaid leave do not count towards this requirement. This means that you’ll need to have worked at least 1,250 hours during the year, not counting your time off for your work injury.

Your employer must also notify you in advance that your time off qualifies as FMLA leave and will be designated as such. If your employer knew of the reason for your leave and failed to designate it as FMLA leave, it will typically not count against your 12 weeks of leave.

You may have additional rights under state law, as well. Some states have their own family and medical leave rights, which might provide additional time off. For information on your state, see State Family and Medical Leave Laws.

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