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Nov28

Taking vacation rather than short term disability

If an employee has three weeks of vacation and chooses to use that time to recooperate after surgery rather than taking a short term disability policy (at 60% salary) offered by the employeer, does that violate any Delaware State laws?

There is no state or federal law that prohibits this, but company policy might. Since Delaware has no meaningful family leave statute, the relevant law is the FMLA or federal Family and Medical Leave Act. Those regulations are set to change on January 17, 2009. But we will address the current regulations under the law.

Normally, an employee on short term disability is also on FMLA, for the companys protection.

The current FMLA regulations permit an employer to allow workers to substitute paid leave for all or a portion of unpaid FMLA. However, there is no law that the employer must allow workers to substitute paid leave. (Again, this changes in 2009.) So it is up to the employer to set a policy regarding this.

Employers may not want workers to take vacation time instead of disability. That is because the employer pays directly for vacation pay, while disability payments are often paid by an insurance company.

Many employers also have rules that permit employees to take only one or two consecutive weeks of vacation. If the company permits an employee to use all three weeks back-to-back for surgery, they will need to do the same for an employee who wants to go to Europe.

If the employer has not permitted other workers to use paid vacation rather than disability in the past, then doing so now may be illegal discrimination based on sex, age, race, color, national ancestry, pregnancy or religion. At the very least, the employer will want the worker to sign off on a notification that she was offered short term disability and declined it.

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This entry was posted on Friday, November 28th, 2008 at 3:34 pm and is filed under
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4 Responses to “Taking vacation rather than short term disability”

  1. sherry gearing Says:

    Can an employee in NYS concurrently be on STD and take vacation at the same time?

  2. Caitlin Says:

    Hi sherry! In most cases, no. An employee who is being paid his or her full salary for vacation, etc. is not entitled to STD, even if the employee is not physically able to work. STD is designed to replace income lost due to illness, and if the employee is being paid, no income is lost. HTH, and thanks for reading the blogs!~ Caitlin

  3. tommy Says:

    Wow I cant fathom who is creating all these silly posts. Your content is excellent and it attracts many amounts of these types posts. take care and thanks for the work!

  4. Caitlin Says:

    Check back often, tommy! We post 5 days per week!~ Caitlin

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