Friday, September 2, 2011

Short-Term Disability, Family Leave, ADA and Workers' Compensation - How They All Fit Together

John's June 2014 Video Will Provide You an Overview of the Family and Medical Leave Act and Short-Term Disability Benefits Work Together

Have a Disability and Need to Take Leave From Work?

When an employee is required to miss work due to a physical ailment, many different issues and/or laws come into play.  We break down the most common below.

NOTE: Click Here to read about the interplay between FMLA, Short-Term Disability and Unemployment Compensation. 

The Flu is NOT an FMLA Qualifying Illness
Do I have an FMLA Qualifying Serious Health Condition?

Provides Income Reimbursement but No Job Security 

The term Short-Term Disability ("STD") refers to insurance payments that are made to employees who have to miss work due to a physical infirmity.  STD insurance is typically purchased by the company (employees may be required to contribute to the premium payment) and one's right to benefits is usually determined by the insurance company from whom the policy is purchased. Thus, while an employee may have to make his/her need for STD benefits known to the company's HR Department, the company has no say into whether an employee is entitled to the benefits - that decision is made by the STD insurance carrier.

STD payments are made by the STD insurance carrier and are typically the equivalent of about 2/3rds of one's regular salary.  STD benefits are usually payable for about 6 months.  If you are not recovered after 6 months, then you must file for Long-Term Disability benefits.

Philadelphia Employment Lawyer Explains How Rights or Benefits Under the Family Leave Act, the Americans With Disabilities Act and Short-Term Disability Insurance Policies May All Be Available at the Same Time

An employee may be entitled to STD benefits if he/she has a personal injury or illness giving rise to the need for leave under the Family and Medical Leave Act ("FMLA").

Such a medical condition may also qualify as a disability covered under the Americans With Disabilities Act ("ADA"), which means an employer may have to offer a reasonable accommodation.

Typically, one has to be out of work for at least one week before the right to STD benefits is matured.


It is not illegal to fire someone who is out on short-term disability; however, it is illegal to fire someone who is protected under the FLA and/or the ADA.

Stated otherwise, an employer does not have to hold open an employee's job merely because he/she is receiving STD benefits. STD benefits are monetary payments, and do not provide employees with any right to job   reinstatement upon recovery.

Fair or not, and subject to the exceptions stated below, it is not illegal to fire an employee who is out of work and receiving STD benefits.


Job Security - No Income Reimbursement
As a general rule, the only federal law that expressly prohibits terminating an employee who is out of work due to a physical condition is the FMLA. Leave under the Family and Medical Leave Act is unpaid - the purpose of the statute is only to provide a right to job reinstatement provided that the employee returns prior to the expiration of the FMLA leave period. 

However, if an employee has to miss work due to his/her own physical condition, the employee may obtain STD benefits while out on FMLA. Accordingly, by exercising one's rights to FMLA leave and Short-Term Disability benefits in tandem, an employee secures both job reinstatement rights and a portion of one's normal wages.


Another potential source of job security if one is suffering from a health condition causing absence from work is the ADA. There is typically little question that a person missing work due to an ADA disability will qualify for STD benefits. In such cases, if FMLA leave is available, use it.

ADA - May Provide Additional Leave as Accommodation
If, however, one is not entitled to FMLA leave, or is unable to come back to work when FMLA leave expires, then applying for leave as a "reasonable accommodation" under ADA may be appropriate.

However, one should expect that leave from work as a reasonable accommodation under ADA would be of a shorter duration than the 12 weeks leave provided for under FMLA.

In sum and substance, if one needs a week or two to fully recover from the onset of an acute problem arising out of a disability, a strong argument can be made that such leave is a required reasonable accommodation under ADA.

So, for example, if a person who suffered a heart attack needs 2 more weeks after FMLA Leave expires in order to achieve full recovery and return to work without restrictions, such leave is in my view a required accommodation under ADA.


Insurance companies can and will fight anything. It is fair to say that if an employee has a documented, clear physical injury (broken/fractured bone, herniated disc, surgical procedure), there is a much greater likelihood that STD benefits will be granted without argument.

Cases involving emotional/psychological afflictions, on the other hand, are typically the more hotly-contested claims. Nevertheless, I have found that, with proper medical documentation, such stress-related claims are frequently successful.

However, and particularly where stress-related claims are involved, STD carriers may contest a claim if there is an issue as to whether the condition is work-related.


In short:  Yes.

Either STD or WC, but Not Both
The standard STD insurance policy states that workers' compensation insurance must provide salary reimbursement where work-absences arise out of work-related injuries.   Consequently, if one is approved for Workers' Compensation benefits, one will be ineligible for STD benefits. If, however, an employee's Workers' Compensation claim is denied, the application for STD benefits will be considered in due course.

NOTE:  All companies are required to have workers' compensation insurance for all employees.  STD insurance, on the other hand, is not required, and falls under the category of "voluntary employer-sponsored benefits." 


Yes, but stress claims are among the most contested of all STD claims. One issue comes up a lot where stress claims are concerned - is the stress at issue work-related? If so, then the employee may have to file a Workers' Compensation claim and have that decided before any possible right to STD benefits arises. In my experience, Workers' Compensation insurers often fight stress benefit claims more vigorously than do STD insurers.


Workers' Compensation insurance protects workers from loss of wages and medical expenses due to work-related injuries.  Workers' Compensation laws are enacted by states.  Since I practice in Pennsylvania, I will discuss how it works here, which I believe is typical of many states.

If an employee is injured while performing his/her job duties, a right to workers' compensation benefits arises.  The typical employer has purchased Workers' Compensation insurance from an insurance company, which in turn then decides claims and pays benefits where appropriate.

Most Workers' Compensation insurance policies pay employees approximately 2/3rds of their regular wage, pursuant to state laws, and also pay for all medical bills arising out of the injury.


Pennsylvania's Workers' Compensation statute does not provide for any right to job reinstatement upon the employee's ability to return to work.  Thus, in theory, you may be fired while out of work due to a work-related injury (absent FMLA protection).  However, the courts in Pennsylvania have held that it is illegal to fire an employee because he/she has filed such a claim. 

I have found that if a company is going to fire someone who has filed a Workers' Compensation claim, they wait until the person is released back to work. 

This is so because employees who have been fired while out of work due to a work injury are likely to take a little while longer to "recover" - after all, where is the incentive to recover and thereby cut off their only source of income, the workers' compensation benefits they are receiving?  Employers know that firing an employee who is out of work while receiving Workers' Compensation wage loss benefits will have the likely effect of prolonging the former employee's recovery period, which in turn has the effect of increasing the company's Workers' Compensation insurance premiums. For this reason, if no other, I rarely see cases where employers have fired employees who were receiving wage loss benefits due to a work-related injury.

On the other hand, firing an employee soon after he/she has returned from a Workers' Compensation absence raises serious red flags, and in Pennsylvania will likely spark a lawsuit unless there is clear evidence that the employee did something (other than have the temerity to file a Workers' Compensation claim) that warranted termination.


Yes.  FMLA provides another layer of job security, and may be taken when one is required to miss work due to a work-related injury.


FMLA, ADA, STD, LTD, Workers' Compensation, Social Security and Unemployment Compensation may all be implicated when an employee is required to miss work due to a physical malady.  Understanding how all of these laws fit together is a challenge, and I hope that this post has provided some useful guidance.

Philadelphia Area Employment Lawyer.

John A. Gallagher, Esquire
Helping Workers Since 1991
Philadelphia Area Family Leave and Disability Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents employees who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Employment Labor Lawyer Near Philadelphia?

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

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Click Here to e-mail John directly.

Thanks for checking in with us.


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Employment Lawyers said...

Thanks; my goal is to provide good, clear information to people so that they may maximize their employment rights while minimizing common errors that can cause loss of employment, benefits, etc.

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Anonymous said...

Thank you for this wonderfully detailed article. However, I am curious about something.

I filed and was approved for STD benefits. I was communicating with the insurance person mainly via email and have kept all communication. About two months after approval, I received a certified letter of termination from my employer - the reason they provided was that the insurance company told them that I wasn't responding to their communications. But I was, and I have proof that I was.

I was basically fired because the insurance company lied to my employer, otherwise they had no basis whatsoever to fire me. Is this legal and is there any way that I can fight this?

Employment Lawyers said...

Dear Anonymous:

Thank you for your kind words.

I am afraid that, as an "at will employee" (I presume) you do not have a wrongful discharge claim even if the STD carrier lied to your employer. You should be able to win unemployment benefits, though.

You may want to try writing a nice letter to your employer, giving it proof that you had been communicating with the STD carrier; I doubt that will help, but it is worth a try.

John A. Gallagher

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Anonymous said...

I'm out of work for FMLA reasons, I think I broke my foot, can I collect STD from my job while I'm still out of work?

Employment Lawyers said...

Anonymous With Broken Foot: You may certainly apply for STD benefits while out on FMLA leave and if the injury in fact precludes you from working you will qualify for STD benefits (assuming, of course, your employer has an STD insurance policy)

Anonymous said...

This post is very crisp and clear to get basic idea of the terminology. Though I work in HR IT, I always get confused with this terminology. This helps me a lot!

Mike Carrington said...
This comment has been removed by the author.
Anonymous said...

I am on STD for about 3 months and my emplyer sent me an email about my job being terminated, can i still get short term disability?

Anonymous said...

can i take std for 13 weeks as my contract provides and then fmla or can the employer count the 13 weeks as part of my fmla leave even if i had not applied or was ask to by the company/until my 13 weeks was up

gareth batty said...

Social Security Disability Insurance (SSD or SSDI) is a payroll tax-funded, federal insurance program of the United States government. It is managed by the Social Security Administration and is designed to provide income supplements to people who are physically restricted in their ability to be employed because of a notable disability, usually a physical disability. SSD can be supplied on either a temporary or permanent basis, usually directly correlated to whether the person's disability is temporary or permanent.

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Anonymous said...

I've been on Work Comp for awhile now because of a back injury. Been doing light-duty in the warehouse, and receiving benefits as usual. I was told that I probably have about 2 more weeks until the Dr. feels comfortable releasing me to full duty. The problem is, 4 days ago, I had my gall bladder removed due to complications with gall stones, and I can barely walk at this point. I don't know whom to contact first. My employer? Work comp insurance agent? My Health insurance? Family Doctor? Im so scared that Ill get the runaraound.

Thank you.

Anonymous said...

My father is out of work on short term disability due to a seizure disorder that required brain surgery. He could not use FMLA because his time had been used throughout the year. His job was posted in February because he was on leave for to long. His long term disability will kick in on May 15 however he has been cleared to return to work as of May 6. His employer stated that he has to reapply for new positions, be interviewed, and then may be placed into a position if the manager wants to hire him. If a manager does not chose to hire him by the 15th he will be terminated. He has applied for 12 separate positions and has not been called about even one. He is qualified for all positions and able to complete the job. Is there anything he can do or does the employer have the upper hand?

Employment Lawyers said...


This is an extremely complex and facts-dense inquiry, and I cannot possibly do it justice on line. However, if your father is qualified for other positions that he has been denied, he should seek legal advice on the issue as to whether he has been subjected to disability discrimination under ADA.


John A. Gallagher

Employment Lawyers said...

Anonymous With Gall Bladder:

The Gall Bladder surgery is not workers comp matter, since it is not a work-related injury. You may seek FMLA leave if you are qualified, and then apply for STD benefits if the company has an STD policy.

Good luck!


John A. Gallagher

Anonymous said...

I've been missing a lot of work due to health conditions (diabetes, painful neuropathy, fibromyalgia) and am worried that my job is in jeopardy. For example, during the past 6 months I have missed about 15% of the work hours and my health is only getting worse.

My concern is that if I don't file for FMLA, STD, and ultimately LTD before I get terminated I'll be out of luck. Can I file for STD after being terminated?

Anonymous said...

My dr. put me off work permanently and can no longer drive. So i went out on fmla and std that id paid into until i hear something from ssd. well the std approved me and had sent a couple checks. I haven't received abything from them in a month. She called today and said i no longer qualified because i don't see my specialist monthly!? hes sent her all papers and everything but i only see him every couple months because i have uncontrolled narcolepsy. That is why i can no longer work because it can't be controlled and he is treating me the only way possible. can they do that because i don't see him monthly?

Anonymous said...

I had a doctors appointment in July 2013 and was put out for the day. I had a scheduled appointment in August 2013 for a follow up and it was my doctors medical advice for me to cease work altogether. I have many health issues. I personally paid or my std benefits, not my employer. They laid me off the same day (morning of) my doctors appointment but before the scheduled Dr visit. They just denied me for not being employed however, I paid the premium through the lay off date. They withdrew it from my pay and my separation agreement clearly states life and disability will end on that date. The insurance company refuses to give me the time the policy expired that day and I have never been provided a plan summary from the employer or carrier ever. Please help.

Anonymous said...

I should mention I live in the state of Maryland. From please help.

Anonymous said...

Im in Maryland. I had a doctors appointment in July 2013 and was put out for the day. I had a scheduled appointment in August 2013 for a follow up and it was my doctors medical advice for me to cease work altogether. I have many health issues. I personally paid or my std benefits, not my employer. They laid me off the same day (morning of) my doctors appointment but before the scheduled Dr visit. They just denied me for not being employed however, I paid the premium through the lay off date. They withdrew it from my pay and my separation agreement clearly states life and disability will end on that date. The insurance company refuses to give me the time the policy expired that day and I have never been provided a plan summary from the employer or carrier ever. Please help.

Anonymous said...

I'm on workers comp waiting for a knee surgery. have been off work but was just released to high restrictions. that is until surgery then off again until I'm employer has not answered me back about and light duty work.,in my profession there realy is no light duty work. will I loss w/c benefits if I don't work until I can go back with no restrictions?

Anonymous said...

I had gotten a bulging disc which caused me to go on fmla for a week. I did this while working in the yard and had no prior problems with my back. I filed for std and they denied me because I was one day short on my absences. I needed to be absent for 8 days and was only absent for 7. They said I i did not qualify for bodily injury std which entails no waiting period because I did not go to the doctor until Monday when my doctor was available and the accident happened the Friday before. Yet my std disability did not state the requirement of going to the doctor the same day as Injury. Long story short I was approved for fmla and took a week off from work after that week and because I didn't get approved for std they used that week of pto that I used because I still wasn't in working condition against the week they denied me std for and caused me to have attendance problems and u was terminated. The mri showed I had a bulging disc that was most likely pressing up against a nerve and causing extreme pain. Do I have a case. And what steps should I take. This has been absolutely horrible for me because I filed unemployment and didn't represent my case with the state well and was denied unemployment. I just keep getting screwed it seems like. Help

Anonymous said...

I am out on STD due to having a c section. My std insurer is denying full payment because there were no complications during my surgery they will only pay me for 6 weeks instead of the 8 that I am required to be out. After being denied the 1st time my dr wrote a letter appealing and I was just denied again. Is there any advice you can give me? Thank you.

Anonymous said...

Great resource. Question I pay for my STD as an optional benefit. I am pregnant and want to leave the job before the birth. Can I continue paying the premium and keep/ extend the policy

mikki163 said...

Here's a good question. What happens if your employer pays you STD while you're out and then denies the claim after they've already paid you benefits? I have fmla too and that was approved since they made me do both to protect my job while out on std. However, the std claim has been denied. I don't know what this means and whether I'll have to pay back any money that was issued to me, even though I pay a premium to participate.

Anonymous said...

I'm having surgery done but will only be out 3 weeks recovery time. can I still receive short term disability

Ryan ODonnell said...


I was recently denied STD coverage for my current condition. I have been out of work for almost 6 months due to chronic migraines. I have had these 24/7 over this time. I have exhausted all options for my employer with my appeal being the most recent denial. What would you recommend I do at this point? I know a lawyer would most likely be the way to go, but would chronic migraines in the end most likely be denied? The insurance company says I didnt have enough evidence to support my claim even though my doctors keep saying I cant work. Thanks.

Anonymous said...

im confused i work in retail winco i have these attacks an docs say no work untill i get my mri turned in the papers and filled out ada papers my question is how will i pay my bills ive exhausted sick and vac. pay

Anonymous said...

I'm having chronic neck and shoulder pain, radiating into arm for past 3 months which is diagnosed as myofascia. The doc says there are knots in the muscles because of chronic stress. I also have symptoms of carpal tunnel for which the doc has ordered nerve conduction test.
I have been asking the doc to provide a recommendation letter for short term disability as I'm not able to work because of constant pain. But the doc is denying that. He just orders tests (MRI showed cervical lordosis), acupuncture, prescription medicines.
I'm pushing myself to go to work but cannot focus. What should I do?

LaQuita Johnson said...

I was involved in a car accident November 19,2013 my fiance was driving we was on our way home from work and he fell asleep at the wheel i was sleep also...I suffered a broken hip & a broken foot... I stayed in the hospital almost a month...I'm still currently on flma... well atleast I thought til yesterday my emmployer sent me a paper saying i failed to return back from flma but i fax in my doctor excuse & I'm still under my doctor's care...Can they do that...

Anonymous said...

As a HR person what rights does the company have to deny a past employee of STD insurance. When the company has proof of the person completeing other work on his/her own since leaving the company.

Anonymous said...

I have been terminated because of not being able to return from fmla leave because of complications during surgery, I was in therapy and under a doctors care when my employer terminated me. I was approved for unemployment but my employer appealed the decision. Is this legal?

Anonymous said...

Friend had knee replacement surgery and her FMLA and all leave expired while she was recuperating. Human resources called and tried to get her to come back to work on restrictions but she refused to return because her doctor wouldn't let her - so, her employer terminated her. Assuming this is called absent without leave. We live in Tennessee - can the employer block her from getting umemployment benefits?

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Anonymous said...

My wife has been out on std since may her company needs lots of paper work which we fill out and send back it is now august and she was only paid once she was suppose to get paid last friday but as usual someone had to review something and didnt get the paper work in now we have to wait another2 weeks i think they are trying to get her to quit is there anything we can do to these heartless people id like to see them live and not get paid for 2 months

Unknown said...


I do not qualify for FMLA, but my doctor has me on bed rest for maternity under STD. I work for the HR department and they were not happy with me taking a sudden leave. They aren't being very responsive to my emails and have not been responsive to the insurance company either. There is an employer portion of the claim paperwork that is pending and the insurance company said they will close my claim if the employer fails to return that paperwork.

I've tried reaching out to HR, and am still unable to get a response.

At this point, would consulting an attorney be the best option?

Anonymous said...

Thank you for sharing such great information.It is informative, can you help me in finding out more detail onTerm Insurance Premium Calculator

Anonymous said...

Do weekends count as my 8 days being off work, to qualify for std.

Anonymous said...
This comment has been removed by the author.
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They did an exam, and then they talked me out of it. brisbane

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Unknown said...

I am on WC i exhausted MMI am applying for short term because i still am hurt Back injury Employer wont fill out their portion which runs out at end of month because of strict conditions i can not stay at job and am being terminated for lack of light duty. Which i understand but is it against the law to slow play my STD so it will run out before it can take effect.

N. Brown said...

I was in a car accident is my job entitled to pay me short-term disability.

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Emily Becker said...

I am employed by a large insurance carrier-never have been out on std before- I have been encountering some stressful situations in my position- have had some performance issues- afraid i am going to lose my job- i need new medication.. should i tell my employer i need fmla- and disability- I have been with the company a long time

Please help me

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Warren Boswell said...

Are you from America, Europe, Asia Pacific, Africa, Middle East or were ever you are from on earth. I am happy to display my identity that contains my pictures, email address and my home address. Its shocking to me till this moment that i finally won $15,000,000.00 after going to so many places here in the states to get help to make me win lottery in a very easy way. I know many people in the states and in the world has given up on trying to win a lottery or have given up trying to contact a magician or a spell caster for any kind of help to solve any form of difficulty. If you are one of them,you are right by given up. i did give up before on trying to win a lottery,because it was never favorable for me at all as i will always not win. Because i have never won as i have tried my luck several times,i have to go seek for the help of a magician here in the states and i used three magicians to try to win but still to no luck and i spent close to $6,200.00 dollars on the magic help i was getting from this woman here is Florida still no win for me as her magic was not powerful enough to enable me win a lottery. At this point i was devastated and don't know what to do again that can help. After a deep thought again that i am not getting younger, Something inside me said to me that i must not give up on my dream to win millions on lottery someday. My problem was now, Since i can not win lottery with my natural luck and i have tried a magician face to face here in Florida, What will i do next was the question i begin to ask myself for weeks till i stumble on a post by some spell caster that he can grant ones help on anything. I contacted him and he also worked for me and still no luck for me to win lottery after spending almost $2,800.00 dollars on the spell he promised to cast for me to win lottery. To everyone out there, This is my main focus and why i took it upon myself to parade the internet just to tell everybody that needs a spell caster online to be very very careful and know that there are more of lies and fraud spell casters online than just the ones that are real that can grant you 100% result if you contact them. Coming online to seek for a spell caster to cast a spell for me to win lottery was another disaster to me as i was deceived by four spell caster that made away with almost $7,800.00 dollars without result. It was my wife that now came home and showed me the testimony of Mari her colleague in the office refereed her to that won just the sum of $75,000.00 with the help of a spell caster called Dr Ajayi Ololo after telling him about how i have tried to win a lottery. My wife advised me and begged me to give the spell caster a try that she know that i have been hurt badly by other fake spell caster and magician in the past, That she was told that this spell caster called Dr Ajayi Ololo make the impossible possible in life as that is his work and his work is 100% guaranteed to get any form of help from him. Really we contact him and he send us a form to fill out after almost 2 hours of contacting him and we did all he instructed and in just 48 hours he called me personally on the phone to tell me that he is done with my work that i can go try my look that i will win noting less than $15,000,000.00. To me i was just like i have heard all this before either from the magician here or the fake spell caster parading themselves to be to real before. But i did went to try his work and with all heavenly truth his words came to pass just as he has said it. Till this moment all, My mouth is not wide enough to say thank you to him because he really prove to me that there are still hard working spell casters that can make the impossible possible in life. Just email to resolve and grant permanent solution to that problem.

michael said...

Thanks to { dr.obho } he is a great spell caster who brought my ex husband back I want to tell everyone about my meeting with ( who bring back my ex lover within the period of 2days... At these moment i don't have anything to say than to appreciate the good works of dr.obho, who you can simply reach through this email address: ( )

{1 } He has herbs to cure HIV cancer, kideny .
{2 } He fix broken relationships, marriages.
{3 } He cure madness/stress/addictions/long illnesses.
{4 } He has mixtures of herbs for sexual weakness.

Once again contact this email ..........

You can also reach me through this number for confirmation +19136084584

Brooke May said...

Dr. Sam has really made me so much believe in him by getting me cured with his herbal treatment. i really appreciate you Dr.Sam for bringing back happiness to my life again. thank you so much, friends join me to thank him for what he has actually done for me i pray to you all for a good life and good health, and most especially to you Dr. Sam THANKS.

I have been suffering from (HERPES SIMPLEX VIRUS) disease for the past four years and had constant pain, especially in my knees. During the first year,I had faith in God that i would be healed someday. This disease started circulating all over my body and i have been taking treatment from my doctor, a few months ago i came on search on the internet if i could get any information concerning the cure of this disease, on my search I saw a testimony of someone who has been healed from (HERPES SIMPLEX VIRUS) by this Man Dr. Sam and she drop the email address of this man and advise we should contact him for any sickness that he would be of help, so i wrote to Dr. Sam telling him about my (HERPES Virus) well after all the procedures and remedy given to me by this man a few weeks later i started experiencing changes all over me. I am nowhere to testify that i am no longer a herpes patient, I have experienced a total transformation in my life, for all herpes patients get your herbal medicine to cure your sickness. And there has been rapid improvement in my health, I no longer feel pains and I wake up each morning feeling revived. So friends my advise is if you have such sickness or any other at all, you can contact him. ( Website:

Email: Or WhatsApp number +2347087462033