Human Resource Blog

FMLA vs STD

I am considering foot surgery (6-8 weeks off) and I was wondering which one FMLA or Short Term Disability would work in my case? We do not employ 50 + people and we are not a government agency.I am not even sure as an employer if FMLA is available to us.

Thanks,

Linda

You are right — FMLA applies only to employers with 50 workers within 75 miles, so it will not apply in your case. Some states have family leave laws that apply to smaller companies, but you do not mention which state you are in.

An employer can opt to permit unpaid FMLA-type absences, even if they are not legally required to.

Short term disability may be an option, but it will not necessarily protect your job. Usually short term disability benefits partially compensate for lost income, but they do not protect the employees job. Five states (Hawaii, California, Rhode Island, New Jersey, New York) offer short term disability benefits to all employees. In other states, short term disability payments are available only if the employee has STD insurance, or if the employer provides such payments.

With or without short term disability benefits, an employer can terminate an employee for non-attendance when the employee misses a certain amount of work. Each employer can set the standard for time missed, as long as it is consistent. Some employers would terminate any employee who misses more than 2 weeks of work. Others would permit an employee to miss 8 weeks of work with a doctors excuse.