Human Resource Blog

short-term disability

What can HR do when an employee keeps on taking short-term disability?

This is a deceptively complex question, partly because you do not say why the employee is taking leave, how many employees you have, or what state you are in.

The short answer is that any employee who is absent for more than a few days, should be on FMLA — unpaid, job-protected leave under the federal Family and Medical Leave Act. By having FMLA and short term disability run concurrently, you limit the employees total leave for all reasons to 12 weeks in the year. Employers with fewer than 50 workers within 75 miles are not required to offer FMLA to employees.

In most states, there is no law that requires an employer to offer short-term disability (other than FMLA) to employees. If you choose to offer that benefit, as an employer, you set the policies governing it. Most employers would limit the total amount of short term disability leave that an employee can take in a one- or two-year period. If you do not have such a policy, consider implementing one. (An extreme measure would be to eliminate short term disability entirely.) But again, even if the employee is on STD, he or she should also be on FMLA. You can legitimately terminate the employee who does not return to work after 12 weeks of FMLA, even if he or she is still on STD.

If the employee has a permanent disability, then different rules apply. The employee may be entitled to additional unpaid time off as a reasonable accommodation under ADA. 

Any employer too small to be covered under FMLA should consider terminating the worker. However, some states have family leave laws that apply to smaller employers, that would not permit this.