FMLA and Workers Comp

An employee with less than one year service gets injured on the job and is out of work on workers comp for 11 months. Returns to work and says she needs shoulder surgery, unrelated to the worker comp injury, and wants to take FMLA for the surgery. I am under the impression she is not qualified for FMLA because she did not work the requisite 1250 hours in the preceedig 12 months prior to the FMLA request, and that workers comp leave does not count towards the 1250 hours "worked" requirement. However, a collegue of mine states you must treat the time on workers comp as "hours worked" which would then satisfy the 1250 hours requirement. We have a bet on this...a big juicy ribeye is on the line.
Will I be eating steak or eating crow..??


  • 2 Comments sorted by Votes Date Added
  • It's early in the morning and I'm not quite awake, but my answer is that they aren't eligible for 2 reasons. First, the DOL does state that time off (paid or unpaid) doesn't count towards the 1,250 hrs worked requirement. here's the excerpt from the [URL=""]DOL site[/URL]:

    Q: Do the 1,250 hours include paid leave time or other absences from work?

    No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

    Also, even if they were for some reason eligible, depending on how you calculate FMLA, the individual would not be eligible, as FMLA and WC run concurrently, thus, the employee would have exhausted 12 weeks of FMLA during the 11 month absence, and wouldn't be eligible again until another 12 months have gone by. Of course, if you track your FMLA on a calendar year basis, things may be different, but if you track using the look back method, they probably won't be eligible.

    At least, that's how I see it. Enjoy your steak!
  • I think your colleague is wrong, but it depends on your state law. He/she may be confused because you can run work comp time and fmla time together. However, prior fmla time and work comp time do not count towards the 1250 hours. Only time worked or specifically designated by law counts.

    My answer is based on federal law. Your state may have other requirements. Follow the link below and go down to the question and answer section. There is one on work comp and on how to calculate the 1250 hours.


    Good luck!

Sign In or Register to comment.