How to prepare your employees and business for disability and return to work

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Key takeaways

1. Employer responsibilities under the FLMA for “serious health conditions” last up to 12 weeks, either for continuous or intermittent leave.

2. Reasonable accommodations under the ADA including a medical leave of absence can last longer than FMLA until the employer can show undue hardship.

3. An employee on short-term or long-term disability can request accommodations including an extended medical leave of absence beyond FMLA or reassignment to another position.

4. Understanding the different definitions of disability can help the employer and employee formulate a plan for returning to work or receiving replacement income through short-term and long-term disability.


Gregory Paul is an attorney with Anderson Zeigler PC with over 20 years experience in employee benefits and employment law. His practice is devoted to counseling clients and litigating in state and federal courts.

The likelihood of becoming disabled before retirement is higher than most people realize.

According to some statistics, a quarter of all 20-year-olds in the U.S. will become disabled before they reach the age of 67. Despite this, only about 30% of private sector workers have long-term disability insurance.

For employers, navigating between short-term medical leave and long-term disabilities for their employees is critical to stay in compliance.

FMLA LEAVE RIGHTS: 12 WEEKS AND JOB REINSTATEMENT

While most employers are familiar with the Family and Medical Leave Act (FMLA), there are other federal laws that provide employees paid and unpaid time off from work for medical reasons.

The Family and Medical Leave Act (FMLA) is unpaid, but provides rights for individuals and their families and responsibilities for employers.

If an individual meets the requirements of an “employee” and worked for an “employer,” the FMLA provides protection of up to 12 weeks of intermittent or continuous unpaid leave of absence for the employee’s own medical condition or the medical condition of an immediate family member of the employee.

Upon return from leave, the “employee” is guaranteed placement in his or her old job, or an equivalent job.

This leave of absence is meant for inpatient care, doctor appointments, or medical episodes required by or resultant from a “serious health condition.” A “serious health condition” is established when the employee’s health care provider completes the certification form provided by the United States Department of Labor.

ADA: MORE STRINGENT DEFINITION OF DISABILITY BUT BROADER APPLICATION

An individual under the Americans With Disabilities Act has a “disability” if he or she is substantially limited in one or more major life activities. The Americans With Disabilities Act prohibits discrimination based upon physical and mental impairments and also provides reasonable accommodations that can include modified work schedules and medical leaves of absence.

This means that a medical leave under the FMLA can be extended as a reasonable accommodation for up to a year or longer depending on the size of the employer and other circumstances.

DISABILITY INSURANCE: SHORT-TERM AND LONG-TERM DISABILITY UNDER ERISA

Disability insurance can be part of an employee benefit package to provide replacement income while off from work due to medical reasons.

Disability insurance is a valuable form of compensation offered by some employers. Without insurance, disability can be financially disastrous for many families, especially those with one primary wage-earner. Disability insurance enables sick or injured workers to earn a living while they are unable to return to their job. Health insurance may cover medical bills, but it does not pay for a family’s bills. Disability payments can cover rent, house payments, buy groceries, utility bills, or help meet other financial needs.

Disability insurance provided by an employer may cover short-term disability, long-term disability, or both. Individuals generally have to file a claim for disability benefits. Payments are usually paid out as a percentage of the worker’s average salary, usually 60% of pre-disability earnings.

The definitions of disability can vary based upon the above laws.

For instance, many short-term disability and long-term disability plans governed by the Employee Retirement Security Act (ERISA) or private disability policies divide the definition of disability into the inability to perform one’s “own occupation” and the inability to perform “any occupation.”

Key takeaways

1. Employer responsibilities under the FLMA for “serious health conditions” last up to 12 weeks, either for continuous or intermittent leave.

2. Reasonable accommodations under the ADA including a medical leave of absence can last longer than FMLA until the employer can show undue hardship.

3. An employee on short-term or long-term disability can request accommodations including an extended medical leave of absence beyond FMLA or reassignment to another position.

4. Understanding the different definitions of disability can help the employer and employee formulate a plan for returning to work or receiving replacement income through short-term and long-term disability.


Gregory Paul is an attorney with Anderson Zeigler PC with over 20 years experience in employee benefits and employment law. His practice is devoted to counseling clients and litigating in state and federal courts.

Many employer-sponsored disability plans provide 60% of monthly income as a disability benefit for a period of 24 months based upon a definition of “total disability,” the inability of the employee to perform the substantial and material duties of his or her “own occupation.” This first part of this definition is significantly easier to prove than the establishment of the employee’s inability to perform the substantial and material duties of “any occupation.”

After this initial 24 month period, an individual may continue to receive disability benefits through age 65 or normal retirement age if he or she can establish through medical and vocational evidence the inability to perform “any occupation.”

SOCIAL SECURITY DISABILITY

Similar to the “any occupation” definition of disability under an employer sponsored long-term disability plan, the Social Security Administration defines disability based upon the inability to perform substantial gainful activity (SGA).

The Social Security Administration defines substantial gainful activity based upon a five-step evaluation process including whether an individual applying for benefits has a “severe” impairment that interferes with basic work-related activities and is capable of any work based upon the individual’s age, education and past work experience. Disabilities as defined under the Social Security Act are required or expected to last more than twelve months.

In summary, the definition of disability varies upon the particular federal statute and regulations. Under the employment discrimination laws, disability is defined differently than employee benefit laws such as ERISA and the Social Security Act. Employment laws such as the FMLA and ADA are designed to allow employees to return to work. Other federal laws such as long-term disability benefits under ERISA and Social Security disability benefits can provide replacement income through regular retirement age.

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