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Apr20

Short Term Disability and FMLA

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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.

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13 Responses to “Short Term Disability and FMLA”

  1. FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update April 21, 2009 Says:
    April 21st, 2009 at 9:17 am

    […] » Short Term Disability and FMLA Human Resource Blog By Caitlin 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, … Human Resource Blog - http://www.humanresourceblog.com/ […]

  2. tr Says:
    May 29th, 2009 at 6:38 pm

    Would this same principle apply if an employer failed to respond to an employee’s request for FMLA information, after going on prescribed medical leave? That is, if the employer did not inform the employee of FMLA (despite employee’s request for the information)can the employer after-the-fact and without prior notification, apply the 12 weeks of FMLA to paid leave that has already been used by the employee?

    In this situation the employee made at least 3 requests for information, while on leave (using paid personal time off and sick leave). After the employee’s paid leave was depleted (10 weeks after the employee went on leave), the employer informed the employee that the FMLA was conditionally granted from the day their leave began. Only 10 weeks, after the fact did the employer provide the FMLA Eligibility Notice to the employee and request the Certification of Health Care Provider form to the employee to have their provider complete within 15 days.

  3. Caitlin Says:
    May 30th, 2009 at 8:48 am

    Hi tr! No. In most cases, when an employer counts other types of paid or unpaid leave as FMLA, the employee must be notified in writing, at the beginning of the leave, that it is being counted as FMLA. In this case, it appears to us that the employee is entitled to 12 weeks of unpaid, job-protected FMLA in addition to the 10 weeeks of paid leave.
    The employee could and should put a start date on the FMLA form that does not include the 10 weeks of paid leave. If the employer does not agree, the employee should contact the U.S. Department of Labor regarding their rights in this situation.
    Under the 2009 FMLA regulations, the employer must inform the employee of FMLA rights within 5 days of the first absence. It appears that the employer did not do so in this case. HTH, and thanks for reading the blogs!~Caitlin

  4. Katherine Glass Says:
    January 9th, 2010 at 5:50 am

    Hello. Great job. I did not expect this on a Wednesday. This is a great story. Thanks!

  5. Caitlin Says:
    January 9th, 2010 at 5:59 am

    Thanks Katherine!~ Caitlin

  6. margaret Says:
    March 24th, 2010 at 2:47 pm

    if an employee goes out on NJ State disability-birth of a child. Starting her last day of work-can she use up her FMLA concurrent with the NJ Paid FMLA?
    The max allowed would be 12 weeks?

  7. Caitlin Says:
    March 25th, 2010 at 9:50 am

    Hi margaret! Yes, in most cases both FMLA and New Jersey paid leave run at the same time (or concurrently.) There is no law that the employee must be given 12 weeks of unpaid leave in addition to her New Jersey state disability. HTH, and thanks for reading the blogs!~ Caitlin

  8. Jim Says:
    August 9th, 2010 at 6:05 pm

    I was injured while working and am currently on FMLA which expires september 9th. I saw the doctor today who has me off till september 13th. I am currently eligible for short term disability. Will short term disability affect my FMLA ?

  9. Caitlin Says:
    August 9th, 2010 at 8:01 pm

    Hi Jim! If you were injured at work, you should be on workers comp, not short term disability.
    No, short term disability will not affect your FMLA. The two are entirely separate and can run concurrently (at the same time.) However, be aware that if you do not return to work on September 9 or 10, you could legally be laid off. FMLA is for 12 weeks only, and cannot be renewed for additional weeks. If your 12 weeks ends on September 9, you are expected to return to work on September 10. You may want to try to see the doctor earlier than September 13 if possible.

    If you have not used all 12 weeks of FMLA, you should contact your employer and request additional time. HTH, and thanks for reading the blogs!~ Caitlin

  10. Robert Says:
    August 31st, 2010 at 12:26 pm

    I was injured at work in October 2009- had to have shoulder surgery and was paid for my time off (about 6 weeks). This June, my wife had a baby and I requested FMLA. My time was approved from June 17, 2010-June 17, 2011. I used about 6 weeks- a few weeks at a time and a few days here and there. Anyway, I put in for 3 more weeks of FMLA and my time was denied due to them charging me FMLA days when I was out for my shoulder surgery.

    Do I have grounds to fight this? I know my employer does not want me to take time off due to this being our busy season (I work for a large lawn care company as a fertilizer applicator). My boss told me that his boss doesn’t want me to take the time off and he was going to “look into it”. I can’t remember being told that when I had my surgery that it was going to be FMLA and don’t know where to look for any answers. Also, the HR said that I can use the rest of the time starting in October because it would have been a year since my surgery. Thoughts? Robert

  11. Caitlin Says:
    August 31st, 2010 at 3:57 pm

    Hi Robert! Sorry, but unfortunately HR is right. This is completely legit. The majority of employers will put an employee who is on workers comp on FMLA at the same time, to avoid having an employee take 24 weeks off in the same 12-month period. Even if your employer did not designate the time off for your shoulder as FMLA, they can do so retroactively now. (This regulation was changed in Jan. 2009 to permit retroactive notification when an employees own serious health condition is involved.)
    Actually, your employer is being generous. They could require that you use FMLA to care for a new baby continuously, rather than intermittently.
    HR is correct. On October 9, you will have access to the additional FMLA time. At that point, you will be able to take FMLA to care for your baby at any time before the child is one year old. However, again, the employer could require that you use it in one 6-week block rather than a day here and there. HTH, and thanks for reading the blogs!~ Caitlin

  12. Ballet Slippers Says:
    February 14th, 2012 at 2:36 pm

    Any follow up advise?

  13. Caitlin Says:
    February 14th, 2012 at 5:55 pm

    Hi Ballet! The U.S. Department of Labor regulations regarding this aspect of FMLA leave have actually changed since our original post. Either post a new question or check our archives for more into. HTH, and thanks for reading the blogs!~ Caitlin

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