Tuesday, July 24, 2012

FMLA, Short-Term Disability and Unemployment Compensation - How Do They All Fit Together?

Philadelphia Employee Lawyer Explains How Family and Medical Leave Act Works for Employees Who Are Suffering From an Injury or Illness

FMLA - Job Security - No Money
Family and Medical Leave is available under a number of circumstances, including when an employee is suffering from a serious health condition, such as the acute onset of a pre-existing medical condition, distress resulting from a new and recently diagnosed illness or an injury resulting from physical trauma.

The Family and Medical Leave Act provides that employees suffering from a serious health condition that limits their ability to perform their essential job functions are entitled to up to 12 weeks of UNPAID leave per 12 month period with a right to job reinstatement upon their return from leave.

The Family and Medical Leave Act is designed to make sure that employees who are forced to take time off from work due to a health crisis will not suffer the loss of their employment.  The FMLA is all about JOB SECURITY.

Your Employer Decides if You Are Entitled to FMLA Leave

If you need FMLA Leave, you make an application through your employer's HR Department.  You will be required to have your physician complete medical certification.  The company then reviews that paperwork, and decides whether to approve your request for FMLA Leave.

You May Be Required to Use Up Your Vacation and Personal Days if You Go Out on Family Leave

As noted above, the Family and Medical Leave Act provides a right to unpaid leave with a right to get your job back when you are ready to return. However, your employer is permitted to require that you "take" any vacation days, personal days or sick days at the outset of your leave (doing so does not extend the length of your leave, it just results in you getting paid for the number of vacation, personal and sick days you have accrued).

Click Here for a detailed description of the Family and Medical Leave Act.

Pennsylvania Employment Attorney Describes How Short-Term Disability Benefits Are Available to Employees Out on FMLA Leave

STD Insurance - Money Not Job Security
The term "Short-Term Disability" refers to an insurance policy purchased by employers to provide income subsidy payments to employees who are out of work due to a serious health condition. A Short-Term Disability insurance policy typically provides benefits equal to 66.66% of an an employee's base salary or weekly earnings for up to 26 weeks.

The Insurance Company That Issued the Disability Policy to Your Employer Determines if You Are Entitled to Short-Term Disability Benefits

Short-Term Disability insurance policies are issued by insurance companies such as Hartford, State Farm, Cigna, Prudential, etc.  These insurance companies are not employers of the employees who apply for benefits.  It follows, then that your employer does not decide if you are entitled to STD Benefits; rather, the insurance company does.

If You Are Deemed Eligible for FMLA Leave by Your Employer, You Will Usually be Granted Disability Benefits by the Disability Insurance Company

If you are qualified for FMLA leave due to your own injury or illness, you will in most cases (most, but not all) be approved for STD Benefits while you are out on family leave.

You Will Be Entitled to Family Leave if You Are Hurt at Work; You Will Not be Eligible for Disability Benefits for a Work-Related Injury

If you are hurt at work and cannot do your job, you will be entitled to FMLA Leave.  Further, you can apply for workers' compensation benefits to subsidize your loss of income.

One cannot get short-term disability benefits for work-related injuries.

John Gallagher's June 21, 2014 Video Discussing Interplay Between FMLA Leave and Short-Term Disability Benefits

You may find this video helpful in understanding how FMLA and disability work together; it also focuses on stress-related conditions triggering the need for FMLA Leave and, by extension, disability benefits.

Can You Get Short-Term Disability Benefits if Your Are Out of Work Due to Stress?

As noted above, if you are granted FMLA Leave by your employer, you will usually be eligible for Short-Term Disability insurance payments. However, that is not because your employer "works together" with its disability insurance carrier. Rather, it simply makes sense that if you have an illness or injury serious enough to justify FMLA Leave in your employer's eyes, then a reasonable insurance company will likely see things the same way.

However, this syllogism is not true if you are out of work due to work-related stress. While your employer will often grant FMLA Leave under such circumstances (in part for the perceived good of all involved) disability carriers are often not so generous.

If the insurance company believes your stress is solely work-related, it may deny your disability claim on the grounds that you claim for loss of income, arising as it does from an injury suffered at work, must be filed with the employer's workers' compensation insurance carrier.

So, while you be entitled to FMLA Leave if the cause of your absence is job-related stress, you will likely be denied STD Benefits in such instances.

In my experience, which is limited (I do not handle workers' compensation cases), workers comp carriers generally frown on paying benefits on stress claims.

Do I Qualify for Short-Term Disability if I Have a History of Depression, Bi-Polar Disorder, Mental Health Problems or Anxiety? Philadelphia Disability Attorney

In my experience, one needs to prove a somewhat lengthy history of psychological infirmity that was simply "brought to the surface" by work-issues to have a strong claim for short-term disability benefits when the medical condition is related to mental health issues.

Even then, these claims are among the most challenging. Sad to say, disability carriers have a hard time understanding (or at least often claim to) how an employee who could work last week could not this week.

I find the insurance carriers' views in this regard egregiously ignorant, woefully outdated and outrageous; modern science has proved, and any educated person knows, that mental health issues are unpredictable and can be triggered by any number of things. Nevertheless, that is too often the reality for those seeking disability benefits in mental health matters.

How to Appeal a Denial of Your Claim for Disability Benefits for When Mental Illness, Depression or Anxiety are Basis for Claim

In such cases, a strong appeal from an initial denial of the claim is essential. Certain legal requirements must be satisfied to put maximum heat on the carrier.

NOTE:  If you are making a mental health disability claim, it helps to have your doctor point out the physical manifestations of your condition, i.e. sleeplessness, stomach upset, migraines, etc.

NOTE:  Due to the complexities of stress-related FMLA and disability claims, it is not a bad idea to consult counsel before seeking leave if it is the company's "hostile work environment" that has driven you to consider exercising your FMLA rights.

One Can Get Disability Benefits Even if Fired From Job

You Can Get UC Benefits if Out
 on Sick Leave Without Pay
If an employee cannot return to work within 12 weeks of the start of  FMLA leave, he/she can be fired without recourse.  However, such an employee would still be eligible for up to 14 more weeks of Short-Term Disability payments.  Consequently, an employee who is terminated from his/her job because he/she could not return to work within 12 weeks of the start of FMLA leave could still receive Short-Term Disability payments for an additional 14 weeks.

Can I Get Unemployment Benefits if I am Out on Sick Leave?

In many situations, the answer is: Yes.  Click Here to learn more.

Philadelphia FMLA and Short-Term Disability Lawyer

John A. Gallagher, Esquire -
Helping Employees Since 1991
Philadelphia Are Employment 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

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.


gareth batty said...
This comment has been removed by the author.
gareth batty said...

Filing disability claims generally is a complex process. A lot of people facing disability understandably have no experience filing a claim, and at this point when they are not well, it is difficult to think intelligibly which they need to win the case. A simple mistake from your end can cost you a lot. Hence, first carefully understand what you have at risk, and wisely opt for the next step considering the options that make the most sense and are best for you.

Darla Hemphill said...

Interesting article and one which should be more widely known about in my view. Your level of detail is good and the clarity of writing is excellent. I have bookmarked it for you so that others will be able to see what you have to say.

workers compensation rates georgia

Anonymous said...

What happens if you get fired while on fmla because you don't understand your company's policy? Can you still seek unemployment?

Employment Lawyers said...


Employees do not need to understand FMLA in order to be entitled to FMLA. Employees need only inform the employer of the existing serious health condition, and then provide medical certification when asked. You need not even mention FMLA to be entitled to FMLA.


John A. Gallagher

Angela Lee said...

Term life insurance is, as the name suggests, temporary. You may wish to be insured until retirement, or until your children are self-sufficient, or perhaps for the duration of a mortgage.

Anonymous said...

What if I am already collecting unemployment from being laid off and I've also became disabled while on unemployment. However my disability policy is not from my previous or present employer. It is a policy I've had for 22 years and has nothing to do with the job. Should I stop my UE benefits? I still have 2 months UE benefits left.

Anonymous said...

I have a somewhat complicated situation: I am currently in a training program which is an employed position (I get a salary) which will be ending on May 30th because that is when I will be done with my training. I get health insurance and short term disability through this position. I am currently pregnant and my due date is in mid-June (i.e. after my position ends). I will delay starting my new job until September 1st so I can spend 2 months home with the new baby. Is there any way I can get short term disability during this time period between jobs even though I will be technically unemployed?

Zaidet Lopez said...

My fmla job protection expires Tomorrow October 25 2013 my doctor (neurosurgeon) has me of till December 8 2013. I'm basically jobless after tomorrow I have an 18 month old son who needs me 100% what do I do ? Someone please redirect me in the right direction. Can I apply for unemployment. Can u receive both I need help understanding this thank u anyone

Employment Lawyers said...

Zaidet: You should become eligible for UC benefits once your doctor says you are cleared to return to work, which looks like. 12/8. You should file your application now and explain to minimize delay.

Employment Lawyers said...

Anon: Sorry for untimely response. If while employed you become disabled and thus eligible for STD benefits, you get them. Unfortunately, even though your "condition" occurred while you were employed, you would not get benefits if your actual period of disability started after your employmend ended....

Anonymous said...

I have just been diagnosed with breast cancer. I'm having surgery that involves bilateral removal of both breast. I will be out on medical leave for 6 weeks. The company I work for has no short term disability. I was given the FMLA form to have my Dr to fill out. Can I get unemployment benefits and govt assistance during my medical leave?

Anonymous said...

I have just been diagnosed with breast cancer. I'm having surgery that involves bilateral removal of both breast. I will be out on medical leave for 6 weeks. The company I work for has no short term disability. I was given the FMLA form to have my Dr to fill out. Can I get unemployment benefits and govt assistance during my medical leave?

Ciara Studevan said...

Can u be out on fmla and receive short term and unemployment. I am out for oanic attacks that are caused from the high stresd level of my job and bullying to the point that I was breaking down at work. On too of that I have a very low hemoglobin and my oncologist said he wants me off as well until we can manage my levels, I was as low as a 2 and still was working 12 hrs shifts. NOw I am out and my inpatient is coming to a end. Even the thought of me returning to work trigger my attacks which maybe u can imagine how this affect my availability to do my duties.

Anonymous said...

I am on disability for depression and anxiety. My fmla ran out but the company is laying me off as of December 2nd. My doctor is going to clear me December 12. Can I put a claim into unemployment?

James Jurovic said...

I have acute pancreatitis,& gallbladder surgery and I am post op four weeks. My Doctor and I decided and provided a release letter to my work to begin working on December 16, 2013 for four hours a day for a month and then 6 hours a day for 2 weeks and then move into an 8 hour day unless of course I am able to do more. I received a certified letter from my employer stating that I need to be at work today 12/13/2013 with the half days arranged or I will be terminated. My employer has every Doctors note and they know what I went through. I am also collecting short term disability that ends December 16, 2013. If I do not show up for work today even though the employer has the release letter and fire me am I able to collect unemployment?

James Jurovic said...

I have had acute pancreatitis,& gallbladder surgery and I am post op four weeks. My Doctor and I decided and provided a release letter to my work to begin working on December 16, 2013 for four hours a day for a month and then 6 hours a day for 2 weeks and then move into an 8 hour day unless of course I am able to do more. I received a certified letter from my employer stating that I need to be at work today 12/13/2013 with the half days arranged or I will be terminated. My employer has every Doctors note and they know what I went through. I am also collecting short term disability that ends December 16, 2013. If I do not show up for work today even though the employer has the release letter and fire me am I able to collect unemployment?

Anonymous said...

can i get unemployment while on short term disability? My employer is only paying me my base pay and not my normal 2nd shift differential which is $o.60 more per hour since i work 2nd shift . is this legal. unemployment would help make up the lost money from my paycheck while i am out due to a surgery.

Bendu Wah said...

I am almost 7 months pregnant, and I also have two little ones. I was denied unemployment benefits. I filed my appeal since November 2013. Did nor hear from them. Unable to find a job in this condition . What do I do?

Anonymous said...

My unemployment ended on Dec due to the cut on extensions and i havent worked after that....very soon ill be 7 months pregnant....can i collect temporary disability?

Lester Rogers said...

Ive got a different situation. I was in a serious accident that left me in a coma. For ten days. While comatose my mother started a process seeking I be assigned a "guardian" or public administrator. This was mid july. After time spent in rehab doing better than doctor's expectations I was assigned a guardian then sent to a nursing home at only 33. I was furious. Immediately won back my rights. Upon being released from the public administrator I immediately go back to work to find out. I was let go. Specifically, my employer said I quit. Apparently, they thought I would not come back. But the company changed there rehire policy and I am ineligible to be rehired. Its a shame. I made 50k year. Now I am in the process of claiming unemployment.. am I eligible? I did not quit. I was let go. They held my job, as long as the law required. But they did say I quit thinking I could just be rehired according to there old policy. I just want to get unemployment. I am able to work. I have a letter from the doctor that helped me escape the guardian that had complete access to my account and was able to collect all my short term disability and also my final paycheck. He left me with nothing claiming all my money went towards lawyer fees..its sick how ive been treated

Robyn Hazeltine said...

I am currently on leave and my employer doesn't want to approve FMLA because they state that they don't think it is a serious medical condition. I otherwise would be eligible for FMLA leave. I did during this time qualify for short term disability through our company policy. Would short term disability pay benefits for an injury and surgery that can be considered by my employer not to qualify? My doctor specifically stated he wants me out of work for 10 more days and it has already been a month.

Anonymous said...

Hello. I am currently FMLA, til5/10, due to unable to work the extra heavy job description (rupture disk)
My Dr will probably certify me modified duty, but my employer said that will not suffice, so I will be unemployed at that time.
1) how di I get extended 14wks FMLA if unemployed
2)can I apply for UE benefits
3)would the additional FMLA wks have a negative financial impact on UE benefits?
I'm in PA and am techniquely still employed
I'm in PA

Anonymous said...

I Just left a comment about my FMLA til 5/10. I failed to mention I'm also STD til that time.
My questions were related to applying for UE, how UE benefits and qualifying. will be impacted by STD payments
Thank you!

Brandon Jones said...

My wife is having a baby and it will be scheduled C section, which will put her down for a few weeks. I get 6 weeks baby bonding time unpaid FMLA or more if doctor feels I need to be the care giver to heris it possible for me to get UC benefits during this time? Or what other steps can I take?

Anonymous said...

I got put on FMLA for 12 weeks. Can I get unemployment? I have no income to pay my bills

Anonymous said...

I was diagnosed as depressed and my psychologist entered a short term disability claim on my behalf. Is it ok to work up until the day that the claim is approved? I have bills like everyone else and unfortunately, if I miss too many days at work and my claim is denied, I run the risk of losing my job. Any info would help. Thanks!

Melinda Crisman said...

I was put on FMLA by my work due to them being unable to provide light duty since I have restrictions from injuries from a car accident. I've applied for STD but the process is taking over a month and still haven't received anything since they are still processing my claim. I've been out of work since April 16th with out any money coming in. What can I do things are becoming overwhelming and I'm very stressed out and can't pay my bills.

Employment Lawyers said...

Melinda: Sorry to hear about your circumstances. STD Benefits should come through soon. You may be eligible for some unemployment, since you are able to work (you cannot do your whole job, but it sounds like you can do some of it). Maybe try applying for UC Benefits, and hang in there.

Employment Lawyers said...

Brandon: I think you should be eligible for UC Benefits, since you are able to work absent your truly appropriate need to take off work to care for your wife. Best of luck!

Employment Lawyers said...

Robyn: That is an odd situation - your doctor and STD Insurance carrier say you cannot work, but your employer says you can and is refusing FMLA Leave?? Your employer is in my view breaking the law. Consult a lawyer ASAP, because you have to handle this just right.

Jim said...

I had a stroke four years ago. I have been working without restrictions and outwardly I am perceived as normal by others. I do suffer headaches, occasionally I throw up when I am physically fatigued and I am unable to do much else beyond work. I feel like my situation is headed for LTD but I am fearful of being denied as I am the sole income and healthcare provider. A loss of income will drastically change our financial situation. What actions can I take to substantiate a claim and what is the risk that a claim is denied?