5 Steps for Managing Workers’ Compensation Absences

When an employee’s absence is related to a workers’ compensation injury, certain steps can be taken to ensure leave benefits are properly coordinated and effectively managed.

The Steps

Following are five action items districts and colleges can implement to aid in managing workers’ compensation absences.

1. Ensure leave and workers’ compensation specialists have effective procedures for communicating and coordinating benefits.

Employers need to establish proper and frequent communication between the staff responsible for administering workers’ compensation, leave programs, payroll, and benefits. 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.

2. Review and consider an employee’s eligibility for leave benefits under state and federal law, including family and medical leave (FML) and temporary disability leave (TDL).

Leave benefits provide protections and benefits not provided by workers’ compensation rules, including job protection and payment of the employer’s contribution to health insurance. Specific rights are dependent upon the type of leave. In contrast, workers’ compensation does not provide leave benefits or job restoration rights. An employer can fill the position of an injured employee on a case-by-case basis when there is a business necessity.

3. Coordinate FML with workers’ compensation absences to ensure compliance with federal regulations.

Any workers’ compensation absence that lasts longer than three days with continuing treatment or that results in inpatient care will qualify as a serious health condition under FML. The 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 follow federal regulations to designate the absence, including providing timely notice.

When determining the applicability of FML, the Texas Division of Workers’ Compensation (DWC) work status form may be used as the medical certification form. It isn’t necessary to require the employee to complete the model DOL medical certification unless the DWC forms don’t provide enough information to determine if the employee has a qualifying serious health condition.

Federal regulations address how FMLA and modified duty programs work together. Employers 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. 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 if the employee is currently working 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 employer’s 12-month leave year.

4. Determine responsibility for payment of health insurance premiums.

The employer is required to continue paying its contribution toward the cost of an employee’s health insurance coverage while the employee is on paid leave or family and medical leave (FML). The employer is not required to pay the usual contribution when an employee is on unpaid leave not designated as FML, including TDL and a workers’ compensation absence.

If the injured employee chooses not to use paid leave and is not eligible for FML, they are responsible for paying the entire health insurance premium. Workers’ compensation income benefits are not considered a form of paid leave because the employee receives payment directly from the carrier. An employee receiving only temporary income benefits (TIBS) is not entitled to the employer health insurance premium contribution.

If the employer continues to pay the employer portion of the premium when the employee is on unpaid leave, it can act as a disincentive for the employee to return to work, particularly when the employee receives TIBS equal to 70 percent of the preinjury wage. TIBS are nontaxable income, and when combined with health insurance premium contributions, the total amount may provide the employee with the same level of income and benefits as they had when working.

5. Document an employee’s choice to use paid leave while receiving workers’ compensation wage benefits.

Districts and colleges may use the applicable sample forms from the HR Services Resource Library to document an employee’s choice to elect leave benefits with workers’ compensation. Be sure to use the form that reflects the employee’s choice regarding the offsetting of paid leave in conjunction with workers’ compensation income benefits.

An employee who elects not to use their leave during a workers’ compensation absence would not be entitled to any reinstatement rights unless the leave has been designated as FML or TDL. If no leave benefit applies, the employer can fill the position of an injured employee on a case-by-case basis because of a business necessity. In addition, having accrued leave does not provide the employee with any specific rights. Receiving the benefit of job protection associated with paid leave only applies when leave is being used.

More information

Information about leave benefits and the coordination of leave is available in the HR Services Resource Library under Administration of Leave Benefits for Districts and Administration of Leave Benefits for Colleges (member login required), and in the TASB HR Services guide The Administrators’ Guide to Managing Leaves and Absences.