Monday, May 16, 2011

Family and Medical Leave and Short-Term Disability Benefits: You Can Get Them Both at the Same Time


You May Want to Watch John's June 2014 Video on this Topic



Family and Medical Leave and Short Term Disability: Can I Get Them Both at the Same Time If I Need to Miss Work Due to My Own Medical Condition?

Without question, this is an issue that confuses many employees and human resource personnel. But, the answer is very simple: YES!  And you need them both, but for two separate reasons. 

Family and Medical Leave Provides Job Security, but no Compensation for Lost Wages


Job Security but no $$$
If you qualify for Family and Medical Leave for your own serious health condition, then you are entitled to 12 weeks of unpaid leave. No money? What’s the big deal? JOB SECURITY. 

If you go out on FMLA Leave, you are virtually entitled to be restored to your same job provided that you return to work within 12 weeks of your first date of absence. To clients that often pooh pooh the benefits of FMLA leave, I often say: Would you rather get paid for 12 weeks and then lose your job, or get by for 12 weeks but then get your job back for (hopefully) years?

However, you may have an opportunity for earnings reimbursement if you go out on FMLA Leave. If you go out on FMLA because of your own health condition, and your company provides short-term disability benefits, you don’t have to go without pay for 12 weeks because…

Short-Term Disability Insurance Provides Payment for Lost Wages While You Are Out on FMLA Leave


$$$ but no Job Security
If you have a medical condition that makes it impossible for you to work, and your company provides short-term disability insurance, then you can be paid a substantial percentage of your wages during the time you are out of work. And that includes while you are out of work on FMLA Leave!

End of story – no debate.


How Do I Apply for FMLA Leave and Short Term Disability?

They are two separate applications.

Your request for FMLA leave is decided by your employer. Simply advise as to what your medical condition is, and provide a doctor’s note supporting your leave request (you don't need the note at the time of your initial notification to the employer of your need for leave; you will need it shortly thereafter). Once you have put the company on notice of your need for FMLA leave, your doctor will likely be required to complete and submit to your employer a completed FMLA Certification form.

Your request for STD is decided by the company’s disability insurance carrier. Tell the company’s HR Department that you want to also apply for STD benefits, and they or the insurance company will send you forms to get you started. Usually, the same medical information you provide from your doctor to support your FMLA claim will  be used to substantiate your claim for STD benefits as well.  That's pushing the Easy Button!

Questions about how FMLA, ADA, STD, Long-Term Disability and Workers' Compensation fit together?  Click Here.

Suppose my Company Does Not Offer STD Benefits - Can I Get Unemployment While I am Out on Family Leave?

In many cases, yes.  Click Here to learn more.

Pennsylvania Family Leave and Disability Attorney


John A. Gallagher, Esquire
Helping Individuals Since 1991
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

64 comments:

Robert said...

As of August 2011 i went on STD and not FML at all. Ive been having seizures and sleep apnea. The doc has me out until March 2012.My STD runs out in Feb 2012. Can i then use FML? I recieved a letter from my company telling me they filled my position and the will extend me FML until Aug 2012 and if i return they will try to find me a position. If i can get back before my short term disability runs out don't they have to give me my position back?

Employment Lawyers said...

Sorry, I do not provide specific advice on specific questions on this Blog because the law is very fact specific....

Anonymous said...

What if I go on FMLA leave b/c I need to care for my spouse, do I still qualify to receive Short-Term Disability Benefits?

Anonymous said...

If a person does not have short term disability through their employer is there a program through the state or fed government that might also cover them?

Employment Lawyers said...

If you go out on leave to care for a spouse, you cannot get STD benefits. STD insurance only covers an employee who has a condition requiring absence from work.

I am unaware of any type of government-sponsored short term disability insurance program in Pennsylvania. Of course, the Social security Administration provides benefits for long-term illnesses or conditions.

Anonymous said...

I have applied for short term disability due to suffering from a back injury that was unrelated to my job. I am currently on FMLA. Can I switch doctors before I'm approved for the STD or after I'm approved without it affecting my STD benifits?

Anonymous said...

I am currently on FMLA from a back injury sustained from something not related to my job. I have applied for STD and am waiting on my doctor to fill out the papers. Can I switch doctors either before or after I'm approved for STD without it affecting my STD or do I have to keep the same doctor?

Anonymous said...

I'm going back to work after 10 weeks off on FMLA/Short Term Disability. How long to I have to work (I had hoped to be retired by now) so that I don't owe anything back to the company or insurance company?

julie said...

I was out on sickleave, and got paid , I do have fmla , I was out @ 45 days on sickleave.my company took my unpaid fmla hours away from me, when I was on sickleave , can they do this ,take fmla unpaid when I was getting paid??? If. They can't what can I do??? Because they did .

julie said...

Can work take my unpaid fmla time , when I am out on paid sickleave , they are saying they can take and use both at same time. They have done this to many where I work , fmla for stress, sickleave for maternity leave, and many other situations where fmla reason was not why they were on sickleave?????

Anonymous said...

June 6,2012
Can I get fired while i'm on FMLA?
Can my job hire someone to take me place while i'm out on FMLA

Employment Lawyers said...

Dear Anon:

You can be fired even if you are out on FMLA under one of the following scenarios (there may be others, but these are the most common): 1) the company was going to fire you before you went out on FMLA (obviously a question of proof); 2) the company discovered for the first time while you were out on FMLA something bad that you had done that justified your termination (proof, again); or, 3) the company did a reduction in force or mass layoff that included you while you were out on FMLA.

Hope this helps.

John A. Gallagher

Anonymous said...

If you have short term disability can it be taken away when you are 7 month pregnant and have had it for several years?

Temporary jobs kent said...

Thanks for all the tips. This info will be really helpful in my search.

Anonymous said...

Hello,
Am I able to leave the state while on STD if my living arrangements have changed in a negative way? I am out for stress related issues and may not have a choice for a brief period of time.

Anonymous said...

Hi, I am on STD and FMLA leave. My specialist says my FMLA exhausts on the 24th of August and right now my dr has me returning the 27th which the work specialist said that is fine. He finally, after many anxious emails, told me that even if my FMLA exhaust as long as I don't go into LTD I will be fine. They administratively terminate those on LTD but pay their percentage of pay which is 50%. I love my job and don't want to lose it. I am just not tell right now.
I have been trying to report to my supv who has not emailed me back. My specialist has, but supv had not after 3 emails and one VM. We spoke on her cell phone and she prayed with me and everything. Then she called me back an hour or so later on the work phone on speaker phone and kept telling me that I should not be inquiring about a supervisors whereabouts and such. She said this 6-7 times. I apologized 6-7 times. I was also crying bc I was so upset bc our convo went so well before then on her work recorded line she changed her demeanor and undermined me. Then said she needed to have this conversation if/when it comes back up again adn this place will continue to run without me. And because I was caught off guard, I was crying. She asked me if I had taken my medicine. What are your thoughts or suggestions and can I get fired for this? I was getting better and hoped to return on the 27th of Aug now because of the conversation with her I have now relapsed. What can you tell me about this? Thanks!

Employment Lawyers said...

Anonymous: no matter what the work specialist said, if you do not return from FMLA leave within 12 weeks, you lose your federally protected right to job reinstatement. If you want guaranteed reinstatement, get a new doctor's note returning you on 24th. In order to address the balance of your issues, we would need to discuss in detail.

Employment Lawyers said...

Anonymous: I don't see why you cannot leave the state while on STD. Just have your mail forwarded.

Employment Lawyers said...

Anonymous: one cannot be on STD for several years, so I do not fully understand your inquiry. I am not sure where the pregnancy fits in...you need to talk to an attorney to explain further and get answers. See my Post on pregnancy discrimination.

sue said...

Can one use std twice in one year for surgeries?

Anonymous said...

I've been out on STD due to stress related illness. I don't want to return to my present employer because of the stressful environment. My question is "can I accept employment with another company while on STD?"

Just a note there are currently four employees out on STD and or FMLA for various health related problems. Is it possible that there is a potential problem at work that may be causing all of these conditions?

Anonymous said...

Just wondering if you can tell me if i qualify for STD on intermittent FMLA. i only need to take off when i have episodes not for a continuous period of time. thank you

Kathy Crawford said...

niesorrAI'm unemployed and due to medical reasons I cant work at this time. Can I get short term medical disability until I have further work up done by MD's? Or do I have to have a job before I can do this? I live in Califronia. Kathy

Kathy Crawford said...

I'm unemployed and due to medical reasons I can't work at this time, can I get short term disability until I have further work up done by MD's? Or do I have to have a job before I can do this? Kathy

Anonymous said...

Anonymous 2~~

Does my employer have to give me my full time shift and hours back when i return from short term disability i was under my 90 day's ?

Anonymous said...

Does my employer have to give me my full time shift and hours back when i return from short term disability i was under my 90 day's ?

Anonymous said...

Does my employer have to give me my full time shift and hours back when i return from short term disability i was under my 90 day's ?

Anonymous said...

Is there a law which states how long the employer has to provide you with short term disability paperwork after you give your supervisor a DR note saying you have to out due to medical reasons? i'm going on 2 weeks still waiting on paperwork for my DR to fill out....

Employment Lawyers said...

Anonymous said...
Is there a law which states how long the employer has to provide you with short term disability paperwork after you give your supervisor a DR note saying you have to out due to medical reasons? i'm going on 2 weeks still waiting on paperwork for my DR to fill out....

ANSWER: No. Best thing to do is follow up, in writing (i.e. e-mail), and be persistent (without being obnoxious).

Employment Lawyers said...

Anonymous said...
Does my employer have to give me my full time shift and hours back when i return from short term disability i was under my 90 day's ?

ANSWER: Only if you were out on FMLA Leave. Otherwise, no.

Employment Lawyers said...

Kathy Crawford said...
I'm unemployed and due to medical reasons I can't work at this time, can I get short term disability until I have further work up done by MD's? Or do I have to have a job before I can do this? Kathy

ANSWER: There is no such thing as government provided short-term disability. There is "long-term disability" available through Social Security. So, if you are unemployed, there is no where for you to go and get STD benefits.

Anonymous said...

Ok I have a question I have been with the same company for 12yrs and I know the company isn't doing to well at the moment and I'm pregnant and going to take my fmla to be off for 8 weeks. There has been things said that they will not take me back afterwards but no dm or regional has said this to me. They are just planning on not inviting me back. Is this even allowed?

Anonymous said...

"Your request for FMLA leave is decided by your employer".
Decided by your employer and not your doctor who knows/has your medical history? That sounds completely ridiculous. So if my doctor agrees I need to be off and I present that to my employer, they can say no?

Anonymous said...

I was on FMLA for 2 weeks in Feb. Im back at work but my check was nothing can I still file for STD?

Anonymous said...

Your company does not have to hold your position for you when u go out on disability of any kind. Even if you get hurt at work, but most likely they will hold your position if you are injured at work as long as you arent out for too long. If you are hurt away from work your company has a at will decision to keep you or drop you. Some unions, like mine, have agreements that covers us 24 months regardless of what cause the disability. Now fmla does not pay you in any way. It only protects your job for 480 hours a year if you have worked 1250 hours previous 12 months. This 480 hours is shared between all fmla forms. When you are out on fmla and is disable you will apply for state disability which is thru EDD. First week you are out is not gnna be a pay week unless you have vacation or sick times you can use. Expect a one month wait to receive your first paycheck if not goes wrong. Your hr should hep you apply for STD. SHORT TERM DISABILITY WHICH WILL COME FROM STATE DISABILITY. BTW THIS IS HOW IT WORRKS IN CA.

Anonymous said...

Same here , iv been off for 3 weeks will I receive a check for the weeks I filled for ?

Anonymous said...

I had foot surgery back in February 2012 due to an infection I had to stay off work one month past my FMLA return date. My company did not ask for an updated FMLA but now a year later they are wanting to penalize me for the additional leave which I was under a the surgeon care. Is this legal?

Employment Lawyers said...

Anonymous:

If your employer penalizes you for taking FMLA leave, it has violated FMLA. You should seek counsel to discuss.

Regards,

John A. Gallagher

Anonymous said...

How long do I have to be out of work for a medical reason to qualify for short term disability?

Anonymous said...

What is the law around short-term dissability and childbirth? My employer told me that I will only get 60% of my salary for a period of 2 weeks only preceding the 30 days elimination period after childbirth. This is the first time I hear this. With my previous pregnancy and emplyer we were entitled for a min of 6 weeks of paid STD. Thanks!

Anonymous said...

I would ask the better business buero those questions..... it would put a little heat for that company to be desent i would think .

Faustyna8000 said...

Hello,
In March 2013 I was approved for re-certification FMLA for my own serious health condition. I did not purchase STD at the start of my employment & my employer doesnt provide STD but they do provide LTD. I do not have savings or any sick time & my Dr. wants me to go out of work for 3 months & he told me Pennsylvania DPW provides STD & he gave me the form # that he is always filling out (Form 1663)BUT I am unable to get any person on the line for info. Are you familiar with this type of financial assistance?

Anonymous said...

I was approved for re-certification FMLA in March 2013 for my own serious health condition. I did not purchase STD at the start of my employment & now I am ineligable, my employer does provide LTD though. My DR. wants me to go out of work for 3 months but I do not have any more paid sick time & no savings. My DR said he fills out this form (#1663) through the Pennsy DPW & says that they should provide financial assistance BUT I CANNOT GET ANYONE ON THE PHONE to answer any questions! Are you familiar with this type of aid?

Anonymous said...

I used 2 weeks of fmla, last year. So, I only have 10 weeks of fmla right now. I do not have STD. But do have LTD. which kicks in 90 days from being written out of work. My question is...if I take my 10 weeks of fmla. I will be about 14-17 days shy of the "90th" day out on fmla. Am I still entitled to my LTD? I know I'll probably be fired once my Fmla runs out. But, is there anything I can do, I.e. pay my benefits, insurance for the shortage of days, before 90days? I'll have a doctors not for the 12 weeks. I just don't know if I can get the LTD.. I've been employed for over 12 yrs, & am in good standing.

Anonymous said...

I used 2 weeks of fmla, last year. So, I only have 10 weeks of fmla right now. I do not have STD. But do have LTD. which kicks in 90 days from being written out of work. My question is...if I take my 10 weeks of fmla. I will be about 14-17 days shy of the "90th" day out on fmla. Am I still entitled to my LTD? I know I'll probably be fired once my Fmla runs out. But, is there anything I can do, I.e. pay my benefits, insurance for the shortage of days, before 90days? I'll have a doctors not for the 12 weeks. I just don't know if I can get the LTD.. I've been employed for over 12 yrs, & am in good standing.

Anonymous said...

I'm currently 29 weeks pregnant and don't want to take my maternity leave until about two weeks before my due date ..my HR department already handed me the FMLA papers for my doctor to fill out ..will he be putting down the day I want to go on maternity leave as the start of my 12 weeks?? And will I be able to apply for STD for my 6 weeks and then take the extra 4 weeks as paid family leave?

Anonymous said...

Sir,
I am trying to find information for my daughter who is pregnant with twins and considered a high risk.She works as a prison guard, if the prison does not offer STD can she apply through the state?

Anonymous said...

I was approved for FMLA & Short Term Disability pay through the company I work for, because I had to get 2 surgeries due to a work related condition. All the information had been provided from the doctors & I was approved by
their HR team for leave with Pay.

Their policy states an employee can take up to 13 weeks of disability with pay. The 1st week is not covered, after that, an employee is covered with 100% pay up to the 6th week, then 75% pay up to 13 weeks.

I've been out for about 5 weeks now & only paid for 40 hours, although I was approved. This has put me in a financial bind. Had I known this was going to be a problem I probably would have applied for worker's comp or not had the surgeries at all.

The company I work for out sources their HR team & I've had a lot of trouble with the reps there; Primarily due to the lack of organization. I was told a different explanation every time I called.
Ranging from "Approved", "Not Approved", "Approved but system was down", "Approved but need to wait",and my personal favorite... I don't see a claim....

I've been with this company since 2007 This is supposed to be part of the benefit package that my employer considers part of my compensation? Is this a legal matter?

Anonymous said...

If I return back to work from STD after 7 weeks and my doctor has released me to part time only (temporarily) can I be terminated while only part time STD if I was written up before I went on STD?

Katie Kelly said...

Would you be required to pay back STD that was paid during FMLA for maternity leave if you decided after the fact not to return to work?

Katie Kelly said...

If you received STD during FMLA for maternity leave, and decided before FMLA was up that you did not want to return to work, would you be required to pay back the STD?

Anonymous said...

I am getting ready to take my maternity leave.. I understand how STD and FMLA coincide... however my employer is claiming that once STD benefits are over, I have to exhaust my PTO before I can take unpaid FMLA leave. Is this true?

Employment Lawyers said...

Katie: I do not believe so. One only has to repay vacation pay taken during FMLA if one does not return. I am pretty sure on that.

Employment Lawyers said...

Anon: Your employer may be confusing things. Neither STD nor PTO provide for time off with right to return, only FMLA does that. So, while you may be entitled to STD benefits while on FMLA leave, and may thereafter be required to accept your accrued PTO pay while on FMLA, neither exend the length of your leave under FMLA (12 weeks). BTW, if you exhaust STD benefits, see if they have Long Term Disability benefits...otherwise, yes, they can require you to accept PTO pay while out on FMLA leave.

Employment Lawyers said...

Anon: If the STD benefits are provided by your employer's insurance carrier, you must take any delay/shortfall up with insurer (it is out of company's hands). If the STD benefits are paid directly by the company (uncommon but sometimes) then take it up with your benefits people. Generally, whether the benefits are pursuant to an insurance contract or company policy, they must be paid if you are eligible. Hang in there and be persistent in your follow up.

Anonymous said...

I currently have an intermittent fmla leave open that needs to be recertification, my question is if I switch doctors do I need to start all over with a new leave?

Anonymous said...

My name is mad money,,,Hello I have short term disability, that I pay every two from my check. My employee just told me short will pay 60% and they will pay me 40% from my time I cumulative meaning ETO (extended time off). The problem I have I paid into short term so why I have one check, meaning short and my job. When I paid a percentage deduction from my check and I supposed to get my time off I cumulative? They say the law. While it shouldn't have my check dedicated for short. That my law . Paying something that only receiving nothing please answer. Cause I have to go back to.work to make ends meet!!!!

Tracy Martinez said...

I been paying for std so do I get paid when I go on paternity lead !!

Anonymous said...

Legally can the employer deny STD and FMLA request if a serious medical condition happens during the period of an employee Performance Improvement Plan which the supervisor is basically going through company procedures in preparation of firing the employee.

CH said...

If I take FMLA for maternity leave I have about 6 weeks of PTO ans sick leave balance. Do I have to exhaust this before I use STD?

CH said...

While off on fmla do I have to exhaust all pto and sick leave before I can use STD?

Sarah H. said...

I am on short term disability and am supposed to return to work on the date specified by doctor. If I do not return to work/quit, will I have to repay the STD? STD is provided through 3rd party.

Anonymous said...

I am on maternity leave and receiving std. I am required to return back to work early next month. I have a doctors appt that will be a week after my return to work date and I am going to have to have surgery. Would I be able to do FMLA to take care of my newborn and STD for my surgery? Thanks!

Ken said...

If I went out on STD back in April of 2012 after an accicent for 12 weeks, can I still get 12 weeks of STD now if needed?