Human Resource Blog

short term disability / lay off

Can someone on short term disability be laid off while on short term disability?

Yes. First of all, lets distinguis between short term disability and FMLA. At most employers, the run at the same time. However, FMLA protects workers from discrimination based on their FMLA leave — short term disability generally does not. Suppose Suzy works at an oil company. She is on FMLA leave for a short term disability. Meanwhile, the oil company has decided to lay off 50% of the administrative assistants, by seniority. Suzy is in that group. Suzy can legitimately be laid off.

An employer can take any action against an employee on FMLA, that the employer would have taken, had the employee not been on FMLA. It is just that the employee cannot be fired solely because she took FMLA.

At times, an employee who is on short term disability can be terminated for taking too much time off, if they exceed the maximum 12 weeks of unpaid leave in a year under FMLA. Sometimes the employee continues to collect short term disability benefits for 13 or 26 weeks, but is unemployed after 12 weeks. So short term disability and FMLA are really two separate issues.