Being granted short- or long-term disability insurance benefits while you are off work does not prevent your employer from taking your job away.By
Short-term and long-term disability insurance policies are intended to offer income protection (cash benefits) to people who become unable to work for medical reasons. What surprises many disability recipients is that these policies offer little to no job protection. In many cases, an employer is legally allowed to fire an employee who is receiving disability benefits, although there are some situations in which an individual would have legal grounds to file a lawsuit for wrongful termination.
Job Protection Under the Family and Medical Leave Act (FMLA)
A federal law known as the Family and Medical Leave Act (FMLA) provides employees with twelve weeks of unpaid leave per year to deal with ones own medical issues or to take care of a sick member of ones immediate family. Not all workplaces are subject to FMLA, and even in those that are, employees must meet certain requirements to be covered by the law. FMLA applies only to companies with 50 or more employees located within 75 miles of each other, and workers must have worked:
Although FMLA leave is unpaid, an employee can receive short-term disability or long-term disability benefits while on FMLA leave. And, in fact, many employers require you to use your allotted FMLA time while youre on disability. For many disabled employees, FMLA is the most important form of job protection they enjoy.
Your employer may not terminate you if you are on FMLA leave as long as you dont go over 12 weeks of FMLA leave per year. When you return from FMLA leave, your employer must employ you in your former position or one that is substantially similar. If you do exceed 12 weeks of FMLA, even by a day, you run the risk of being terminated for excessive absences. Of course, if youre fired while receiving disability insurance benefits, youll still continue to receive benefits according to the terms of your policy.
Finally, remember that FMLA is a federal law, and that some states will have more generous policies regarding unpaid medical leave. Check with your states Department of Labor or an employment law attorney to find out the rules where you live.
How FMLA and the ADA Work Together
It can be confusing to figure out how the FMLA and the ADA apply to your particular situation, when you are on FMLA or other unpaid leave and receiving disability benefits but you want to return to work eventually. For example, can your employer argue that the fact you are collecting disability insurance benefits means you cant perform the essential functions of the job? No. The definitions of disability used by the ADA and insurance companies (and Social Security and workers comp) are all different, so collecting disability benefits from any of these sources doesnt necessarily mean you cant do the essential functions of the job and are not protected by the ADA.
This summary may help you apply the FMLA and ADA rules to your personal situation.
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