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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.
WHAT IS SHORT-TERM DISABILITY?
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
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 - then one must file for Long-Term
An employee may be entitled to STD benefits if he/she suffers a personal
injury, has a need for leave under the Family
and Medical Leave Act ("FMLA") or is suffering physical
complications related to a disability covered under the Americans
With Disabilities Act ("ADA"). Typically, one has to be out
of work for at least one week before the right to STD benefits is matured.
CAN MY EMPLOYER FIRE ME IF I AM RECEIVING SHORT TERM DISABILITY
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.
CAN I TAKE FAMILY LEAVE AND RECEIVE SHORT-TERM DISABILITY AT THE SAME
As a general rule, the only federal law that 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
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
CAN A SICK LEAVE BE AN APPROPRIATE REASONABLE ACCOMMODATION UNDER THE
AMERICANS WITH DISABILITIES ACT?
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,
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 as a reasonable accommodation 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.
CAN THEY DENY ME SHORT-TERM DISABILITY BENEFITS IF I HAVE A DOCTOR'S NOTE?
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
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.
CAN THEY DENY ME SHORT-TERM DISABILITY BENEFITS IF I SEEK WORKERS'
In short: Yes.
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 "benefits."
CAN I GET SHORT-TERM DISABILITY BENEFITS FOR STRESS?
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
benefit claims more vigorously than do STD insurers.
WHAT IS WORKERS' COMPENSATION INSURANCE?
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.
CAN I BE FIRED WHILE OUT ON WORKERS' COMPENSATION?
Pennsylvania's Workers' Compensation statute does not provide for any right to
job reinstatement upon the employee's ability to return to work. 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. It seems logical to conclude that an employee who has been fired is
likely to take a little while longer to recover - and therefore can continue to
receive Workers' Compensation benefits for wage loss for perhaps longer than
they would have if their job was waiting for them,. Employers know that
firing an employee who is out of work while receiving Workers' Compensation
wage loss benefits will have the likely effect of increasing the company's
Workers' Compensation insurance premiums and for this reason, if no other, such
a practice is relatively rare.
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 that warranted termination.
CAN I GET FMLA LEAVE AND WORKERS' COMPENSATION AT THE SAME TIME?
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
Read more articles
about employment law issues at Philadelphia Area Employment Lawyer, a blog
by John A. Gallagher.
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