Short-term disability vs FMLA: what each one does

Is short-term disability the same as FMLA?

No. The FMLA (Family and Medical Leave Act) is a federal law. Short-term disability is not a law at all. It is an insurance benefit, from an employer's plan (insured or self-funded) or, in a few states, a state programme, and it is not part of the FMLA.

The FMLA protects your job while you are out. Short-term disability replaces a share of your pay while you cannot work because of a qualifying medical condition. Neither does the other's job, so one absence can involve both, with separate paperwork for each.

What does each one actually do?

The FMLA gives an eligible employee up to 12 workweeks of leave in a 12-month period under 29 CFR 825.200. Your employer keeps your group health coverage on the same terms as if you were working (825.209(a)), and at the end you are reinstated to the same or an equivalent job (825.214), subject to 825.216: no greater right than if you had been continuously employed. Leave in pieces draws from the same 12 workweeks; intermittent FMLA explained covers the counting.

The FMLA does not pay you. 29 CFR 825.207(a) says it plainly: "Generally, FMLA leave is unpaid leave." An eligible employee may choose to substitute accrued paid leave for it.

Eligibility under 29 CFR 825.110 has three tests that apply together: an employer with 50 or more employees within 75 miles of your worksite, 12 months on the job, and 1,250 hours in the preceding 12 months. Eligible is necessary, not sufficient. For leave for your own condition, the absence must also be for a serious health condition, and under 825.300(d) the employer is responsible in all circumstances for designating leave as FMLA-qualifying. The FMLA serious health condition guide covers that test.

Short-term disability pays a share of your wages while a covered person cannot work because of a qualifying medical condition. Who is covered, what share of pay, for how long, and after what waiting period are set by the plan or the state, not by federal law.

It does not protect your job. Job protection, where it exists, comes from the FMLA, the ADA, a state law, a union contract, or your employer's own policy. Short-term disability has its own eligibility, set by the plan, and does not require FMLA eligibility.

Can you use FMLA and short-term disability at the same time?

Yes. Under 29 CFR 825.207(d), leave taken under a disability leave plan "would be considered FMLA leave for a serious health condition and counted in the leave entitlement permitted under FMLA" if it meets the serious-health-condition criteria, and the employer may designate it as FMLA leave and count it against your entitlement.

One absence can be FMLA leave and a short-term disability claim at once, and the two clocks run together, not one after the other. Because disability pay is coming in, neither you nor your employer may require accrued paid leave to be substituted for it. Topping up with paid leave is possible only by agreement, where state law permits.

Short-term disability does not start the FMLA clock on its own. Under 825.300 the employer's designation is what makes an absence FMLA leave. Until the employer designates, the absence is not FMLA leave. Under 825.301(d) an employer may designate it later, where that causes no harm and the two sides agree; where a failure to designate does cause harm, 825.301(e) provides a remedy.

Which one pays more?

Neither pays more, because they are not the same kind of thing. The FMLA pays nothing on its own. The whole federal answer on pay is substitution under 29 CFR 825.207(a): your accrued paid leave in place of unpaid FMLA leave, under your employer's normal paid-leave rules.

Short-term disability pays whatever the plan says. The share of wages, the waiting period, and the maximum duration are in the plan's summary description, the claim packet, and the insurer's or leave administrator's letter. They are set by the plan or the state programme, not by the FMLA.

If you have both, you are job-protected and partly paid.

A few states run their own programme, with terms set by the state; short-term disability in New York covers one of them.

What paperwork does each one need?

Two forms, two recipients. The FMLA certification goes to your employer or its leave administrator. The disability claim goes to the insurer or the plan. One is not automatically accepted in place of the other; a form goes to each, and a provider is asked for both, separately.

The employer requests the FMLA certification. Under 29 CFR 825.305 it is due within 15 calendar days after the employer's request, or later where that is not practicable despite diligent, good-faith efforts, or where the employer allows it. Under 825.306(a) it carries the provider's contact information and type of practice, when the condition began and its probable duration, appropriate medical facts, and that you are unable to perform your job functions. A diagnosis is not required; the Department of Labor's FMLA FAQ says so.

If it comes back incomplete or insufficient, the employer must state in writing what is missing and allow seven calendar days to cure it, or longer where that is not practicable despite diligent, good-faith efforts (825.305(c)). If it is never provided, under 825.313 the leave is not FMLA leave.

The short-term disability claim is the insurer's or plan's own form, in parts. You complete the employee's statement. Your employer completes the employer's statement. Your attending or treating provider completes the provider's statement: the condition, the date you became unable to work, the treatment plan, and the expected return. Deadlines are on the claim packet and the insurer's or leave administrator's letter. The insurer or plan decides the claim.

Who may sign differs. Under 29 CFR 825.125 a physician can sign the FMLA certification, and so can a nurse practitioner, physician assistant, clinical social worker, or nurse-midwife under (b)(2). Which provider types the disability claim accepts is set by the plan. The plan sets its own schedule for updates.

Certicare is a telehealth service where leave and accommodation paperwork is completed and signed by a state-licensed provider after an evaluation. That covers the provider section of both forms, usually within 24 hours after we have everything needed. Completing our intake form starts the review; it does not guarantee a signature, and if the review does not support your request you are refunded in full.

If your own provider declines, see doctor won't fill out FMLA paperwork.

What happens when FMLA runs out but you're still out?

The 12 workweeks under 29 CFR 825.200 are a ceiling. When they are used up, FMLA job protection ends. Short-term disability pay continues or stops on the plan's own schedule.

Job protection may still come from elsewhere. The ADA (Americans with Disabilities Act) reaches employers with 15 or more employees, and leave can be a reasonable accommodation under it, per the EEOC's guidance on employer-provided leave. So can a state law, a union contract, or your employer's own policy. ADA leave explains that route.

Short-term disability does not require the FMLA and does not end because the FMLA ended. You can be on it with no FMLA at all, because you are not eligible or your employer has fewer than 50 employees. Mental health leave from work covers what applies then.

If something happens to your job while you are out, see fired for mental health leave. When you go back, your employer may ask for a return-to-work note.

Is it better to use FMLA or short-term disability?

It is not a choice between them. The FMLA answers whether you will have a job to return to. Short-term disability answers whether money comes in while you are out. Where both apply, they run at the same time under 825.207(d).

The real decisions are smaller: whether to apply for the disability benefit your plan offers, and whether to give your employer enough information to designate the leave. Under 29 CFR 825.302 and 825.303, the first time you ask you need not mention the FMLA by name, but the employer needs enough information to know the FMLA may apply.

Each track has its own form, and doing one does not do the other.

You don't need to know which form matters more before you start. Answer the intake questions, and a state-licensed provider completes and signs the provider section of the paperwork your leave case needs, where the evaluation supports it.