Human Resource Blog

Short Term Disability and FMLA

Your answer to a previous question was “Not every employee on Short Term Disability or STD is on FMLA, either. In order for STD or medical leave to count as FMLA, the employer must inform the employee at the beginning of leave, that it is FMLA. The employer cannot do that retroactively. If the employer fails to inform the employee in advance, the employee could be entitled to 12 weeks of paid STD plus 12 weeks of unpaid FMLA.”

We have an employee on paid short term disability. The doctor has recently extended it to June 3rd. Today, the employee inquired about FMLA. Per your comment above — we, the company, did not inform the employee in advance that it is FMLA. (We only provided the forms for STD.) Are we obligated to allow the employee STD benefits and FMLA concurrently at this time? In short,  is the employee entitled to both based on these events.

Yes, this employee is currently eligible for 12 weeks of unpaid, job-protected leave under FMLA, in addition to the (paid) short term disability leave that your company has already granted. It is your choice whether the takes both STD and FMLA concurrently beginning now, or whether the employee takes all the STD available and then begins their unpaid, job-protected leave under FMLA.

To put it simply, even if a company offers paid short term disability to employees, that does not change the companys obligation, under federal law, to offer up to 12 weeks of unpaid leave under the federal Family and Medical Leave Act, or FMLA.

The way most employers handle this, of course, is for the short term disability or STD to run concurrnetly — at the same time — as the FMLA leave. However, under FMLA regulations, the employer must inform the workers at the beginning of leave, that it is being counted as FMLA. (It is very common for time off under workers comp to be counted as FMLA leave, as well.) If them employer fails to do this, the employee is entitled to 12 weeks of FMLA leave in addition to short term disability.

By the way — the employees doctor determines if he or she still has a short term disability, and whether or not the employee is able to return to work. However, the doctor does not determine whether or not the employee receives short term disability payments. The employer determines that. Most employers do not pay short term disability benefits. If you do, you should have a clear policy in place that states how long an employee is eligible for short term disability benefits. Often this is a maximum of 4, 6 or 12 weeks.

Since you are now extending the employees short term disability leave, by all means, notify the employee that he or she is also on FMLA. However, you cannot retroactively classify the leave already taken as FMLA.  

Permitting this employee to take STD and then take FMLA also sets a precedent. If you do not treat other employees the same, you may well be the target of a discrimination suit. This is especially true if the next employee taking STD is of a different sex, race, color, religion or national ancestry from the current employee on STD. We would recommend that you immediately issue a written policy that employees on STD will be on FMLA concurrently, rather than taking one and then taking the other.