Many injured workers in New York use their sick days, vacation days or other leave so their paychecks keep coming while they are out on a work injury. That is often the right move, because workers’ comp checks can take weeks to start. Once the comp claim is approved, you can usually get some or all of that time back. This is called restoration of time. What surprises most people is that it is often not a dollar-for-dollar, day-for-day restoration. If you used 50 sick days, you may get back 33, or 25, or fewer. Here is why, and what you can do about it.
How it works
- You are hurt and miss work. Your employer keeps paying you, either as regular salary or by charging your sick, vacation or other leave balances.
- Your employer asks to be paid back. Under Section 25(4) of the Workers’ Compensation Law, an employer that paid you wages during a period of disability can be reimbursed out of your comp award. The employer has to file that claim before the award is made.
- The Board makes an award and credits the employer. Instead of the money going to you, the part of the award covering the time you were paid goes to your employer.
- Your leave is restored. Because your employer got money back, leave is put back in your bank. How much depends on how much your employer recovered and on your employer’s rules and your contract.
Why your leave balance matters
Sick and vacation days are worth real money. You may need them for a future illness, a family emergency or another flare-up. Many public employees can cash out unused leave when they retire or leave the job, and some can use it toward service credit in their pension. If leave you burned on a work injury is never restored, you can end up paying for your own injury out of your own time bank.
Why it is not always dollar for dollar
Your employer paid you your full salary while you were out. Workers’ comp does not pay full salary. It pays two-thirds of your average weekly wage, reduced by your degree of disability and capped at a weekly maximum. So the money your employer gets back from your award is usually less than what it paid you. Under many union contracts and leave rules, your time is restored in proportion to the money your employer recovered, not day for day.
An example
Say you earn $1,500 a week and you are out for 10 weeks after a work injury. You use 50 sick days, and your employer pays you $15,000 while you are out.
- Totally disabled: your comp rate is two-thirds of $1,500, or $1,000 a week. Your employer is reimbursed $10,000, which is two-thirds of what it paid. With proportional restoration, you get back about 33 of your 50 sick days.
- Partially disabled (50%): your comp rate is half of that, $500 a week. Your employer is reimbursed $5,000, one-third of what it paid. You get back about 17 of your 50 days.
Higher earners are hit harder, because the weekly maximum can make the comp rate well under two-thirds of their pay.
What decides how much you get back
- Your contract and leave rules. Some employees get full restoration. For example, New York State’s attendance rules restore leave in full for many state employees once the award is credited to the State. Many other contracts restore leave in proportion to what the employer recovered.
- Your degree of disability. The lower the percentage of disability the Board finds, the smaller the award, and the less time comes back.
- The award itself. Later awards, such as a schedule loss of use award, can be credited to your employer too, and can lead to more of your time being restored.
- The type of leave. Some contracts treat certain types of leave as non-restorable. In that case the employer may not be entitled to reimbursement for it.
New York courts have held that restoration should not give either side a windfall. Your employer should not be reimbursed for more than it paid, and you should not end up with both the money and all of your time back.
City, State and school employees
Restoration comes up most often for public employees, because government employers commonly keep paying salary and then seek reimbursement from the comp award.
- City of New York employees: the City often continues your pay while you are out and is reimbursed from your award. Your leave restoration then depends on your agency’s rules and your union contract. See workers’ comp for City of New York employees.
- New York State employees: leave charged during an approved comp absence is restored after the award is credited to the State. Your contract decides whether it is restored in full or in part.
- School employees: teachers and other staff may be covered by a contractual line-of-duty injury program, workers’ comp, or both, depending on the job title. See workers’ comp for NYC school employees.
Private employers and PTO
Private employers can also file for reimbursement when they pay you wages or PTO during your disability. If your employer does not file for reimbursement, the comp award is generally paid to you. Whether a private employer gives back PTO you used is usually a matter of company policy, so ask HR in writing and keep the answer.
How to protect your time
- Report the injury and file your claim right away. Restoration only happens if your comp case is established.
- Keep records of every day you were charged. Save your pay stubs and leave balance statements from before and after the injury.
- Read every Notice of Decision. Look for language that credits or reimburses your employer for a period you were out.
- Follow up with payroll or HR. Restoration is not always automatic. After the award is credited, check that your balances actually went back up.
- Check the math. Compare the days restored with the amount your employer was credited. An employer should not be reimbursed for more than it paid you, or for periods that were not part of your comp disability.
- Push for the right disability finding. A higher degree of disability means a bigger award, and more of your time back. That is where a lawyer makes a difference.
Still waiting on your first comp check? See how long workers’ comp takes to start paying in New York.
Frequently asked questions
What is restoration of time in workers’ comp?
It is getting back the sick, vacation or other leave you used while you were out on a work injury. When your employer is reimbursed from your comp award for the time it paid you, the leave it charged for that time is restored to you, in full or in part.
Will I get all of my sick days back?
Not always. Restoration is often not dollar for dollar. Comp pays two-thirds of your wage, reduced by your degree of disability and capped at a weekly maximum, so your employer usually recovers less than it paid you. Under many contracts, your time is restored in proportion to what your employer recovered. Some employees, including many New York State employees, get full restoration.
Is restoration automatic?
It should follow once the award is credited to your employer, but mistakes and delays happen. Check your leave balances after each decision and follow up with payroll if the time has not been put back.
Can my employer take my comp award?
If your employer paid you wages or charged your leave during your disability, it can ask the Workers’ Compensation Board to reimburse it from your award, as long as it files before the award is made. It cannot be reimbursed for more than it actually paid you.
Talk to a New York workers’ compensation attorney
The Law Offices of Frank J. Dito, Jr. handles workers’ compensation claims from the office on Staten Island, for injured workers throughout the five boroughs and across New York State. If you used your own time while you were out on a work injury, call us and we will help make sure it comes back to you.
Call 718.701.2776 or 800.310.5520. Consultations are free. If we don’t recover money for you, we don’t get paid.
