Human Resources News & Insights

Short-term disability vs. FMLA – Do they conflict?

Our team of experts fields real-life, everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s question: Do FMLA and short-term disability conflict with each other?

Question: If someone’s out on short-term disability, does the time count against his or her FMLA leave allotment?

Answer: If a short-term disability is caused by a serious health condition as defined by FMLA, the two forms of leave can run concurrently, says employment attorney Lawrence Peikes.

For example: If an employee is out for more than three days and receives two or more doctor’s treatments during that period, or a chronic condition exists, you can count that period as both short-term disability and FMLA leave. The situations meet the criteria for both.

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  • Meghan

    What if I was hospitalized for a serious illness, my employer paid me my PTO for 2 weeks, and no mention of FMLA was exchanged. Then they submitted my STD forms. I returned to work way too soon. I was paid one day of STD. In the next months following I continued treatment and did not improve. 5 months later I’m asking for a leave under FMLA and my employer wants to apply the time I used 5 months ago. I was not even aware I was covered under FMLA while I was out. Are my 12 weeks in effected and if so am I still covered for my leave?

  • Lauren

    Meghan, I am not a lawyer, but you may want to speak with one. Your employer cannot retroactively designate leave as FMLA leave. If they did not notify you at the time that they were counting your time off as FMLA time, they cannot do so now.

  • Joyce

    If I informed my supervisor I had begun a new medication and it was affecting me in a negative way, but was unable to get my doctor to send the required documentation before I was terminated, was my boss still on notice of a possible temporary disability? I had not yet requested leave, as I wanted the documentation in hand to back up my request. FYI, the medication caused unclear thinking, emotional outbursts completely out of character, etc. I was terminated for swearing in the office while under the influence of the meds.
    Any advice or info would be appreciated.

  • Harriet

    I have an friend whose wife is having their 2nd baby. He wants to take off under FMLA for the birth and time afterward. I dont see a problem there but my question is that he also wants to take off 2 days every week afterwards while his wife can go back to work those 2 days for the next few months. Would those weekly 2 days count as FMLA since there is no actual sickness involving the baby. It just appears as a babysittiing problem?
    Thank you,
    Harriet

  • Lauren

    You may want to send your friend a link to this section of the regs:
    http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.3.53&idno=29#29:3.1.1.3.53.1.479.18

    They may be particularly interested in this section:
    (b) Intermittent and reduced schedule leave. An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees. For example, an employer and employee may agree to a part-time work schedule after the birth. If the employer agrees to permit intermittent or reduced schedule leave for the birth of a child, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, federal law (such as the Americans with Disabilities Act), and State law. Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave. The employer’s agreement is not required for intermittent leave required by the serious health condition of the mother or newborn child. See §§825.202 through 825.205 for general rules governing the use of intermittent and reduced schedule leave. See §825.121 for rules governing leave for adoption or foster care. See §825.601 for special rules applicable to instructional employees of schools.

  • HR Annie

    @ Joyce How much time lapsed from when you asked/were given the FMLA paperwork and when you were terminated? There are timeframes in place that could have assisted you.

    There is a timeframe of 15 days to return the FMLA paperwork back to your employer. Did you go over this timeframe?

  • Harriet

    If I have an employee who is pregnant and the doctor gives her a note that she has to go on bedrest, no more working. Can she use her vacation days, sick days until she is out of them and then apply for FMLA? Or does she have to use FMLA from the very beginning? Her due date is around 7/15 and her vacation and sick days give her 21 days before she would start FMLA.

  • HR Annie

    @ Harriet The answer to this question depends on how you administer your FMLA policy.

    Being that she only has 21days of accumulated time, and her due day is well more than 21 days away. Her best option would be to use her FMLA time in conjunction with disability.

    Once she does the waiting period, disability would kick in so that she will have something coming in. It may not be much, but it is something. Normally disability will pay up to six weeks after birth or up to eight weeks if it was a c-section. Disability also covers for anytime before birth that the mother is unable to work.

    After she exhausts her disability, you can pay her out her sick/vacation time that she has accrued according to the FMLA policy

  • Shana

    Is it possible for an employee out on pregnancy leave, who is collecting TDI, to take intermittent leave. We have an employee who would like to work from home a couple days a week while out on TDI/FMLA/HFLL. Thanks!

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