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Short Term Disability

When returning to work from short term disability or STD, does the employer have to either have a job position available for the employee or another position or can they terminate employment if they claim to not have any open positions?

This sounds like a simple question, but it is not! It would be helpful if there were more details in your question, like the state, the length of the leave and the circumstances, but we will work with what we have.

Short term disability does not offer any job protection — but FMLA does. Many employers and employees use the two terms interchangably, but they are really entirely separate.

Short term disability is a benefit that partially replaces an employees lost income when they cannot work temporarily, for health reasons. Some companies offer short term disability benefits to every worker, that the company pays for. These benefits may be paid directly by the employer, or through an insurance policy. Other employers offer short term disability insurance policies as an option that are paid by employees. Five states (Hawaii, California, New York, New Jersey and Rhode Island) offer short term disability benefits to almost every employee.

On the other hand, there is unpaid FMLA leave. Most employees are entitled to up to 12 weeks of unpaid leave under FMLA, the federal Family and Medical Leave Act. The FMLA law applies only to employers with 50 or more workers within 75 miles. FMLA is job-protected, meaning that the employee must be returned to his or her job. If that is impossible, the employee must be returned to a job with the same salary, benefits and working conditions. Usually, that means the same job. However, this job protection under FMLA does not apply if the employee is absent one day longer than 12 weeks.

For absences longer than a few days, employees generally submit FMLA paperwork at the beginning of the leave. However, technically employees have until 2 days after returning to work (in most cases) to request that the leave be considered FMLA.

Most of the time, an employee who is on short term disability is also on FMLA, at least for the first 12 weeks. Most employers require that the two run concurently. This gives employees the best of both worlds. They receive benefits, but their job is also protected. However, if the employee is on short term disability more than 12 weeks, the FMLA protection ends. At that point, the employee is still collecting benefits, but no longer has a job to return to.

If the employee wants to return to work after a short term disability of more than 12 weeks, the employer can establish their own policy on how to handle the situation. Many employers would simply tell the worker the position has been filled. Others would tell the worker that they can reapply for any open positions.

Lets look at an example. Marcia has a heart attack, and is off work for 15 weeks. Her short term disability insurance pays benefits for up to 26 weeks, so Marcia receives benefits for the entire time. However, Marcias employer is not under any obligation to hold her job for her, after 12 weeks. If Marcia had returned to work after 12 weeks, at the end of her FMLA leave, the employer would have to reinstate her. However, since Marcia has missed more time from work, the employer is under no obligation to rehire her. Once Marcia is healthy, she may qualify for unemployment benefits.

There are some significant exceptions to the no-job-protection rule. If the short term disability is work-related, often the employee must be returned to work, regardless of how long the absence is. Some states have leave laws of their own, that protect a workers job. If the worker has a disability under the EEOC definition, then additional time off may be required as a reasonable accommodation, which would effectively protect the employees job.

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This entry was posted on Thursday, October 16th, 2008 at 11:01 am and is filed under
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10 Responses to “Short Term Disability”

  1. Lynne Hernandez Says:

    I posted your article to my myspace profile.

  2. Caitlin Says:

    Thanks Lynne!~ Caitlin

  3. Pam Sneden Says:

    If my employeer reassured me that they would always have a job for me are they required to reinstate me?
    I had a heart attack and open heart surgery Ive been out for almost six months my doctor has released me with a few resrictions.

  4. hrlady Says:

    Hi Pam,

    The only requirement your employer (provided they must comply with FMLA)would have had, was under The Family Medical Leave Act (FMLA). If you were an eligible employee,the requirement would have entitled you to 12 workweeks of unpaid, job-protected leave in any 12 month period. That protection would have guaranteed reinstatement. The 12 week period has probably ended, therefore, they would not have to reinstate you.

    Now that you are able to return to work, you should contact your employer and discuss a possible return to work.

  5. Faith Says:

    Hello.. I have been on short-term disability due to stress, anxiety, and depression since 8/28. Originally I was supposed to return to work on 10/8 but my doctor extended it. I just recently found out that the place I work for offered my job to another staff member. Upon learning of this I returned to my doctors and begged her to release me to return to work (she did not want to). She finally did for me to return tomorrow. I know that they can terminate me and give my position to somebody else as they are not required to hold it for me. But can they try to make me work a different schedule like weekends when I was hired for M-F, lower my wage, or make me do housekeeping when I was originally hired for Payroll? And I am not on FMLA because I have not been with them for 12 months.

  6. hrlady Says:

    Hi Faith,

    FMLA requires an employer to return an employee to the same or equivalent position upon return from FMLA leave. Because you were not eligible for FMLA your employer can legally either terminate you or place you in a new position upon your return from short term disability.

    The new position does not need to be an equivalent position as far as hours or rate of pay. You should contact your Human Resource Department and discuss your return to work upon your full release from your doctor.

    Thank you for reading the

  7. Kimberly Says:


    I have been on medical leave (fmla) and paid disability (unum) for just over 12 weeks. My disability benefits are 100% for 3 months then 75% for an additional 3 months. My disability leave will likely continue for a few more weeks at which point I have decided I do not wish to return to my old job. I am curious as to how my disability benefits will be affected if I do not return. Can my employer make any retroactive deductions in which I would owe it money? Need I inform my employer of my intention not to return before my disability ends?

  8. hrlady Says:


    The best thing you can do is have a discussion with the Human Resource department of your intention not to return to work. If your doctor has not released you to return to work the insurance carrier may continue to pay you, however, that is a decision the insurance company will make along with your company.

    It is best to be honest, things work out better.

    Thank you for reading the

  9. patty b Says:

    My job offers short term disability for 3 months. I have exhausted those months. I tried to return to work but after 3 days found I could not do it. I have pustular psoriasis on feet and work in factory standing all day. Putting on shoes is a chore itself. Can I reapply for short term again?

  10. hrlady Says:

    Hi Patty,
    In most companies, sick days are offered. In the event of an extended illness, the company will either have a self funded Short Term Disability Policy, or one that is purchased through an insurance carrier. In either situation, typically an employee is allowed to use their sick days, and then if they cannot return to work they are placed on Short Term Disability. Sometimes if the employee is still unable to return to work companies have Long Term Disability policies for those employees unable to return to work after STD. You should discuss any options available to you with your Human Resource Department.
    I do not believe you would qualify for another round of STD, but you should ask about an addition 30 day leave or Long Term Disability.
    Thank you for reading the

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