Answers to frequently asked questions on workers’ compensation

In nearly all states, employers with one or more employees must provide workers’ compensation. When an employee gets injured at work, a number of questions may arise, including whether the injury is covered by workers’ compensation, whether the injury must be reported to the insurer, whether the employee can use vacation during injury leave, and whether a denial of workers’ comp coverage affects the recording obligation on the Occupational Safety and Health Administration (OSHA) 300 Log. These questions are addressed in this article.

Q: How is coverage determined?

A: An injury will generally be covered if it arose in the course and scope of employment. This determination is not always simple, so it should be made by the insurance carrier or other managing agency. Even an initial denial of coverage could be challenged by the injured employee.

For example, in one case, an employee was leaving for home at the end of the day. As she was pulling her car out of the company parking lot, her vehicle was struck by another vehicle on a public road and she was injured. An injury that occurs during a commute is not normally covered, so her claim was initially denied, but she appealed. A security camera had recorded the accident and showed that approximately one foot of her vehicle was still in the company parking lot at the moment of impact. For that reason, a judge determined that her injuries were covered by workers’ compensation.

Q: Must every injury be reported?

A: If the injury is covered (or likely to be covered) by workers’ comp, it should be reported to the insurer. Most states provide a form to report injuries, which can usually also serve as the OSHA 301 Incident Report. State laws establish time frames for filing the initial injury reports, typically from seven to 30 days after the employer learns of the injury.

Since workers’ comp is an insurance program, the number of claims and total cost of claims will affect the premiums. To control costs, some employers do not report minor injuries, choosing to pay for treatment out of pocket. Employers should verify that their state law allows this and should keep in mind that a seemingly minor injury could later require medical treatment because of infection or other complications. If the deadline for filing the injury report has passed by that time, the employer would have to continue paying out of pocket for any medical expenses, no matter what the total cost, because the injury could have been covered if not for the failure to report it.

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Q: Can injured employees use vacation?

A: Maybe. But even if allowed, there may not be any advantages to such vacation use. For example, most state workers’ compensation agencies will still allow the injured employee to collect disability benefits, even if the employee is also collecting vacation pay. This could mean that the employee gets more income than he or she would receive while working.

In some cases, employees may want to use a few hours of vacation each week to supplement the disability benefits, which are typically two-thirds of the employee’s wages. Employers may allow this or, in some cases, require it. However, if the employee’s absence is protected by the Family and Medical Leave Act, the employer may not require the use of vacation or other paid leave, unless the employer and employee reach an agreement, and then only if the paid leave will supplement the workers’ comp benefits, up to the employee’s usual wages.

Q: If workers’ comp is denied, is the case OSHA-recordable?

A: The injury could still be recordable on the OSHA 300 Log, even if the case was denied coverage under workers’ compensation. Any work-related injury must be recorded on the OSHA 300 Log, but OSHA’s definition of “work-related” may differ from the state criteria used to determine if an injury is “work-related” for purposes of workers’ compensation. An injured employee could be denied workers’ comp, but the injury could still meet the OSHA recording criteria.

Ed Zalewski is an editor at J.J. Keller & Associates Inc. Zalewski specializes in employment law issues such as discrimination and harassment, overtime, exemptions, and labor relations. He is the author of three guidance manuals — Employment Law Essentials, Employee Relations Essentials, and Fair Labor Standards Act Essentials.