Can FMLA or CFRA leave run at the same time as workers' comp?

Can workers' comp and FMLA run at the same time?

Yes. When you are eligible and a work injury is also a serious health condition, your employer can count the days you miss as federal FMLA leave and California CFRA leave while you receive workers' comp, so the leave runs alongside your benefits, not after them.

Workers' compensation and family or medical leave solve two different problems. Workers' comp pays part of your lost wages and your medical care for a work injury. FMLA and CFRA do something else: they protect your job while you are out. One injury can trigger both at once.

Federal regulation 29 CFR 825.207 says that when your employer designates a work injury absence as FMLA leave, that time counts against your FMLA leave. The U.S. Department of Labor's employer guide to the FMLA adds that this overlap depends on the employer properly telling the worker that the time counts as FMLA leave. California's Government Code section 12945.2, the law behind the California Family Rights Act (CFRA), says CFRA leave runs concurrently with FMLA leave. For your own injury, leave under the two laws together tops out at 12 workweeks within a 12 month period, so they do not stack into 24 weeks.

To use either law you generally need 12 months of service with your employer and 1,250 hours worked in the past year. FMLA also requires your employer to have 50 or more employees within 75 miles of your worksite, according to the federal FMLA fact sheet. CFRA's bar is lower: your employer only needs 5 or more employees. That gap matters for workers at smaller companies, covered below.

For how a temporary disability check actually gets calculated and paid, see how to apply for temporary disability benefits.

Do I have to use FMLA while I'm on workers' comp?

The choice is usually your employer's, not yours. If you qualify and your injury is a serious health condition, your employer can count your workers' comp absence as FMLA and CFRA leave, and federal rules require a written notice when it does.

Under 29 CFR 825.300, your employer is responsible for deciding whether your time off counts as FMLA leave. Once it has enough information, it must tell you in writing, usually within five business days, and say how much leave it is counting when that amount is known. Weeks counted this way come out of your 12 weeks even though you are also on workers' comp. You do not get a fresh 12 weeks afterward for the same absence.

Ask your employer's human resources department to confirm in writing how your time off is being counted. That record helps if a dispute comes up later over how much FMLA or CFRA time you have left.

There is one place the two paths can split. Under 29 CFR 825.702, if the doctor treating your work injury clears you for light duty but not for your regular job or an equivalent one, you may turn down the light duty offer. Turning down light duty can cost you temporary disability payments, but the federal rule lets you stay on unpaid FMLA leave until you can go back to the same or an equivalent job, or until your FMLA leave runs out.

Does CFRA protect my job while I'm on workers' comp in California?

Yes, if you qualify. CFRA generally requires your employer to return you to the same job or a comparable one when your leave ends, with limited exceptions unrelated to your leave, such as a layoff.

California's Civil Rights Department lists three tests for CFRA eligibility: more than 12 months of service with your employer, 1,250 hours worked in the past year, and an employer with 5 or more employees. If you meet all three and a serious health condition from your work injury keeps you from doing your job, CFRA allows up to 12 weeks of leave per year.

When your leave ends, Government Code section 12945.2 requires your employer to put you back in the position you held before you left, or one with the same or similar duties and pay at the same or a nearby location. State regulations allow only narrow exceptions, such as a layoff.

FMLA gives a similar federal right: your same job or an equivalent one with equivalent pay, benefits and other terms (29 CFR 825.214).

What happens when my FMLA or CFRA leave runs out but I'm still on workers' comp?

Your workers' comp claim keeps going on its own schedule. Losing your FMLA or CFRA job protection does not cut off your temporary disability check or your medical care.

For your own injury, FMLA and CFRA together give you no more than 12 weeks of leave in a 12 month period. Plenty of serious injuries take longer than that to heal. Temporary disability can continue for up to 104 weeks within 5 years of the injury for most claims, under Labor Code section 4656, and your employer must keep covering your approved medical treatment while your claim stays open. See how temporary disability payments work and how long you can stay on workers' comp for the full timeline.

What ends is the job protection those two leave laws give you. The federal employee guide to the FMLA says that if you use up your FMLA leave and are unable to return to work, your employer is not required to restore you to your position. That does not make every firing lawful. Labor Code section 132a bars firing or punishing a worker for filing a workers' comp claim. California's disability law can also apply. The Civil Rights Department says employers with 5 or more employees must provide reasonable accommodation for a worker with a disability, which can include leave for medical care, unless it would cause undue hardship. It also says an employer must offer to start an "interactive process" when it learns a worker has used up leave but still needs an accommodation.

Working out how FMLA, CFRA and a workers' comp claim fit together usually comes up early, right after you report the injury and your claim opens. Yazdchi Law handles only the workers' comp side: temporary disability payments, medical care and disputes over the claim itself. For FMLA questions, start with your employer's human resources department or the U.S. Department of Labor's FMLA program. For CFRA or a disability accommodation, contact the California Civil Rights Department. This firm does not handle leave or other employment claims.

If your workers' comp claim is denied or delayed, your checks stopped, or you think you were fired for filing the claim (a Labor Code 132a issue), a workers' comp lawyer can help you look at your options. The firm reviews each matter individually.

Call (661) 273-1780 or use the contact form for a free consultation about your claim.