Kansas Department of Administration

Bulletin 01-02 - Workers Compensation and use of leave including FMLA

1.0 - SUBJECT: Workers compensation and the use of leave including FMLA

2.0 - EFFECTIVE DATE: May 10, 2001

3.0 - DISTRIBUTION: Agency Human Resource Managers

4.0 - FROM: Bobbi J. Mariani, Director DATE: May 10, 2001

5.0 - PURPOSE: To clarify the use of leave when the employee is receiving benefits under the Workers Compensation Act.

6.0 - BACKGROUND:

6.1  There have been numerous inquiries regarding whether an employee receiving workers compensation has a choice to use accrued leave to supplement workers compensation payments.

6.2  There have also been questions about whether or not FMLA leave can run concurrently with workers compensation.

7.0 - PROCEDURE:

7.1  According to K.A.R. 1-9-5(g), an employee awarded workers compensation has the choice of whether or not to use accumulated leave to supplement the one third portion of the employee’s regular pay that is not covered by workers compensation. The agency can not require the use of leave while an employee is on workers compensation.

7.2  If the work related injury for which the employee is receiving workers compensation meets the criteria of a "serious health condition" as set out in K.A.R. 1-9-27, the time that the employee is off work (i.e., the time covered by workers compensation and any accrued leave) should be counted against the employee’s 12-work week FMLA leave entitlement.

Even though K.A.R. 1-9-27(b)(3)(B) states that accrued leave shall be used prior to the use of leave without pay, an employee receiving workers compensation benefits is never in leave without pay status and therefore, does not have to exhaust all leave.

8.0 - REFERENCES: K.A.R. 1-9-5, 1-9-27 and 29 C.F.R. § 825.207(d)(2).

9.0 - CONTACT PERSON: Kim Warren at Kim.Warren@ks.gov or (785) 296-4770.

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