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How to Manage Leave during Workers’ Compensation Absences

February 14, 2019 April Mabry, TASB HR Services

Workers' Compensation

Employers that effectively manage employee absences often have systems in place to ensure workers’ compensation and leave benefits are coordinated. How do you do this? First, establish proper communication between the staff responsible for administering workers’ compensation, leave programs, and payroll.

Next, share information so the injured employee knows about the rights and benefits of leave programs. This helps ensure that the district complies with laws such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Some employers accomplish this by assigning responsibility for workers’ compensation and leave to the same individual or department. When that role is in different departments, staff must make a concerted effort to share information and collaborate.

Workers’ compensation versus leave

Employees who suffer a work-related illness or injury are entitled to necessary medical treatment and may receive income benefits during a continuous absence. This includes Temporary Income Benefits (TIBS). The workers’ compensation laws include no provisions for leave entitlement or job reinstatement. There is also no requirement for the employer to continue paying contributions to the individual’s health insurance premiums.

A person with a work-related illness or injury that results in missed work may also qualify for leave benefits under the Family and Medical Leave Act (FMLA) and paid or unpaid leave.

Texas public school district employees may also be eligible for the following:

  • Family and medical leave (FML)
  • State personal and sick leave
  • Temporary disability leave (TDL)
  • Assault leave
  • Local leave (sick, personal, extended or catastrophic, and bank or pool)

Each benefit provides some job protection or restoration and may provide full or partial paid leave. When leave is paid, the district or employer is required to pay the regular health insurance premium contribution.

Employee election of leave

The employee of a public school has the choice to use paid leave during a workers’ compensation absence. [Texas Labor Code § 504.052] Workers’ compensation rules prevent employees from receiving more than 100 percent of their pre-injury average weekly wage if they decide to use paid leave while receiving TIBS. Public employers can adopt an “offsetting” policy that limits employees to using partial amounts of leave while receiving TIBS. In this case, the combined amount equals the pre-injury weekly wage.

If the employer has not chosen an offset policy, the employee may choose one of the following:

  • Use available leave and delay TIBS until the amount of elected leave is used or to the degree that paid leave does not equal the pre-illness or pre-injury wage
  • Receive TIBS and decline the use of available paid leave

If the employee is required to use paid leave for a workers’ compensation absence, they will also be eligible to receive TIBS at the same time. The combined benefits could be greater than the pre-injury wage, providing an incentive to remain out of work as long as possible.

Since the choice to use paid leave can impact the amount of TIBS received, it is important to keep a record of the employee’s choice to use or decline paid leave for each claim. A sample form to document the employee’s election is available online in the Workers’ Compensation Library (see leave election form). The carrier must receive in writing the amount of elected paid leave used in order to take credit against any TIBS due.

FMLA and workers’ compensation

Any WC absence longer than three days with continuing treatment or that results in inpatient care will qualify as a FMLA serious health condition. FMLA provides greater rights to job restoration and continuation of health insurance contributions than workers’ compensation. Therefore, it is important to determine an employee’s eligibility and obey federal regulations to designate the absence, including providing timely notice.

Federal regulations address how FMLA and modified duty programs work together. [29 C. F. R. § 825.220(d)] Districts can follow workers’ compensation rules and offer an employee a modified duty position when the health care provider confirms the employee is released to return to work with limitations. Under FMLA, the employee is allowed but not required to accept the position and continue on FML. However, under workers’ compensation rules, refusal of modified duty can result in loss of income benefits.

If the employee accepts the modified assignment, the time spent in the assignment does not count toward the employee’s FML right. The employee’s right to return to the same or equal position is valid as long as the employee is in the modified assignment. If the length of the employee’s modified duty assignment is not limited, the employee’s right to restoration runs out at the end of the 12-month leave year defined in Policy DEC (LOCAL).

Information about leave benefits and the coordination of leave is available in the TASB HR Services guide The Administrators’ Guide to Managing Leaves and Absences. If you have any questions, please contact April Mabry, assistant director for TASB HR Services.

Editor's note: This article was originally published in October 2016 and has been updated for accuracy and comprehensiveness.

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