Sick leave and vacation time for workers comp is not ok!
Maryland law provides that if you are injured on the job and held out of work by a physician you are entitled to workers compensation payments known as Temporary Total Disability (TTD). These payments are paid to the injured worker (claimant) once he or she has missed three days of work and has a doctors excuse letter. Sick leave and vacation time should not be used for a workers comp case. Maryland law provides that the injured worker receives temporary total disability payments after three days have been missed. The injured worker is entitled to be paid for those particular three days only after two weeks of work have been missed. In other words if he or she is out of work for only 10 days then the claimant would be entitled to only 7 days of TTD. If however the claimant misses 14 days of work then the full 14 days is compensable. (Note, there is likely some legislative history indicating this rule somehow encourages the injured worker to return to work sooner but it is my experience that the three day rule has no impact on an employees willingness to return to work.)
Reimbursement of sick leave and vacation time for workers comp!
Often the injured workers’ employer advises that they should be using sick time or vacation time for workers comp. This is not the rule, however it may be necessary to use leave in the beginning of the case until the workers compensation insurer can start paying the ttd benefits. If the work comp insurer challenges the case it could take up to four months or longer for lost wages to be paid. So using sick leave and vacation time for workers comp will at least avoid financial devastation until workers comp begins paying TTD. Workers Comp will then have to reimburse the injured worker part of his sick leave and vacation time.
Once the ttd benefits start the injured worker should be paid 2/3’s of their average weekly wage. The workers comp insurer will not have to pay back the entirety of the vacation or sick leave used but will have to pay 2/3 of the time used. What this means for the worker is that they may not be reimbursed for their total sick leave and vacation time used and will likely be at a 1/3 loss of their vacation/sick/leave. There is very little room to argue for total pay back of the vacation time under Maryland workers compensation laws.
If, like many municipal employees, you are able to accrue vacation and sick time it may be a good idea to do so just in case there comes a time that you are injured on the job. Getting a workers compensation insurer to begin the temporary total disability benefits could possibly take months if they choose to challenge the case. Even if a hearing eventually takes place their is no guarantee that the injured employee will win!
What to do if your employer is using sick leave and vacation time for workers comp
On occasion the workers comp insurance adjuster will willingly start paying lost wage benefits so the first thing an injured worker should do is see if that is an option. Likely at this point in the case it is not an option and some help from a workers compensation attorney is necessary. Consultations with an attorney are free and any payment to them is a percentage out of the wages recovered. In Maryland the attorney fee for recovery of ttd payments is 10% out of the money owed and recovered by way of hearing. If the attorney is able to convince the insurer to pay the ttd without a hearing then there is no attorney fee. It is best for the injured worker to get an attorney involved sooner rather than later to avoid unnecessary delays in the case and to give the attorney time to adequately prepare should the need for a hearing arise.