November 2016, Vol. 1

Managing leave during workers' comp absences

by April Mabry

One common characteristic of districts that effectively manage employee absences is that they have systems in place to ensure workers’ compensation and leave benefits are coordinated. The first step in establishing these systems is to ensure good communication exists between staff responsible for administering workers’ comp, leave programs, and payroll.

Sharing of information is an important step to ensuring the injured employee receives the rights and benefits of various leave programs and that the district complies with statutes, such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

Some districts accomplish this by assigning responsibility for workers’ comp and leave to the same individual or department. In districts where responsibility is in different departments, staff have made a concerted effort to work cooperatively and share information.

Workers’ comp vs. leave

Employees who suffer a work-related illness or injury are entitled to necessary medical treatment and may receive partial income benefits (e.g., Temporary Income Benefits (TIBS)) during a sustained absence. The workers’ compensation statute includes no provisions for leave entitlement or job restoration and there is no obligation for the district to continuing 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 be eligible for leave benefits including the following:
  • Family and medical leave (FML)
  • State personal and sick leave
  • Temporary disability leave (TDL)
  • Assault leave
  • Local leave (e.g., sick, personal, extended or catastrophic, bank or pool)
Each of these benefits provide some measure of job protection or restoration and may provide full- or partial-paid leave. When leave is paid, the district is required to pay its regular health insurance premium contribution.

Employee election of leave

The employee has the choice to use paid leave during a workers’ compensation absence. [Texas Labor Code § 504.052] Workers' comp rules prevent employees from receiving more than 100 percent of their pre-injury average weekly wage if they elect to use paid leave while receiving TIBS. Districts can adopt an “offsetting” policy that limits employees to using fractional amounts of leave while receiving TIBS so the combined amount equals the pre-injury weekly wage.
If the district has not adopted an offset policy, the employee may choose one of the following:
  • To use available leave and postpone TIBS until leave is exhausted or to the extent that paid leave does not equal the pre-illness or pre-injury wage
  • Receive TIBS and forego the use of available paid leave
If the district requires the employee to use paid leave for a workers' comp absence, he or she also will be eligible to receive TIBS at the same time. The combined benefits could be greater than the pre-injury wage, thereby providing an incentive to remain out of work as long as possible.

Since the election to use paid leave can impact the amount of TIBS received, it is important for districts to document the employee’s choice to use or forego paid leave for each claim. A sample form to document the employee’s election are available online in the Workers’ Compensation Library (see Leave Election Form) and in the HR Library in the HR Services myTASB resources.

FMLA and workers’ comp

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

Federal regulations address the interplay of FMLA and modified duty programs. [29 C. F. R. § 825.220(d)] Districts can follow workers’ comp rules and offer an employee a modified-duty position when the health care provider certifies the employee is released to return to work with limitations. Under FMLA, the employee is permitted, but not required, to accept the position and continue on FML. However, under workers’ comp rules, refusal of modified duty may result in the 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 entitlement and the employee’s right to restoration to the same or equivalent position remains in effect as long as the employee is in the modified assignment. If the duration of the employee’s modified duty assignment is not limited, the employee’s right to restoration expires at the end of the 12-month leave year defined in Policy DEC (LOCAL).

Additional information about leave benefits and the coordination of leave is available in The Administrators’ Guide to Managing Leaves and Absences. The fourth edition was released in September and is available for purchase in the TASB Store.