Employer’s Guide to Disability Leave

What is disability leave?

Disability leave is a leave of absence. It’s granted to employees who can’t perform their job functions — with or without reasonable accommodations — due to a physical or medical condition or temporary disability. Employees who meet certain eligibility requirements under federal law, and who work for employers required to comply with those laws, can be granted a certain amount of disability leave. During this time, their job is protected and their health insurance and other benefits must continue. Federal law does not require employers to pay these employees during the leave of absence, although some states do require paid leave.

Disability insurance benefits

In addition to disability leave covered under federal law, employees may be covered by disability insurance benefits provided through their employer. These disability benefits usually provide compensation to an employee who can’t work because of a disability; they typically fall under the categories of short-term disability (STD) or long-term disability (LTD).

“The main difference between FMLA and a disability leave [provided under insurance benefits] is the compensation,” explained Lewis Mayhew, CEO and founder of South Scaffolding. “FMLA-eligible employees are not paid [during the leave], and [it] usually applies to an employee’s family but also to the employee’s own health condition as well. Disability leave is a doctor-approved personal injury or illness, and compensation is at the discretion of the employer. FMLA is also applicable to employees who have worked in an organization for at least a year, so it is ideal for long-term employees.”

Getting paid under disability leave

An employee who is on a disability leave covered under federal law may be able to use these insurance-provided disability benefits or paid time off (PTO) in order to be compensated while they are on the leave. However, it depends on an individual employer’s policy, said Alex Berke, an employment attorney with Berke-Weiss Law.

“One thing that gets very complicated about the FMLA, and is related to the insurance benefits like STD and LTD, is that because it’s unpaid, an employee may use different things to get paid during that time,” said Berke. “So, they might be required to use all of their PTO, for example, or they might be eligible for STD pay, which pays them while they’re on leave.”

How do the ADA and FMLA govern disability leave?

Employees may become entitled to disability-related leave under the FMLA and ADA. There are distinct differences between the two federal laws. If an employee has exhausted their paid leave options under PTO or insurance-provided disability benefits, they may seek unpaid leave as a reasonable accommodation under the ADA. Or, if they have a “serious health condition,” they may seek leave under the FMLA. But, they must meet eligibility requirements, said Lisa Berg, a shareholder with the law firm Stearns Weaver Miller Weissler Alhadeff & Sitterson.

Disability leave under the ADA

The ADA’s disability rules apply to any employer with at least 15 employees. It ensures that any employee who can’t perform their job functions can request disability leave as an accommodation or make use of reasonable accommodations like scheduling changes. However, the employer is not required to provide the leave or scheduling changes if it poses an undue hardship, said Berg. “Also, the employee is not entitled to indefinite leave,” said Berg. “Rather, the employee must demonstrate that the leave will ultimately enable them to return to work. The issue of whether it imposes an undue hardship is determined on a case-by-case basis.”

There is no minimum number of hours an employee must have worked for their employer to request an accommodation under the ADA. Even prospective employees can request reasonable accommodations, for example, during the interview process. When an employee makes a request for an accommodation, including leave, the employer is required to engage in a discussion with them surrounding their needs and their eligibility. “…the basic idea is that under the ADA, through what’s called the ‘interactive process,’ employers and employees discuss possible accommodation needs,” said Berke.

Employers who are unsure if their employee is requesting an accommodation that would fall under ADA requirements should notify their HR team, said Berke. Employers should always document their communication with an employee about accommodation to protect against any potential future legal actions, according to Berg.

Disability leave under the FMLA

The FMLA requires employers to provide employees with unpaid leave for family issues, such as adoption, pregnancy, family or personal illness, or military leave. It ensures the employee has health insurance coverage continuation and job protection while they are away from work.

The FMLA requires employers to provide unpaid leave for:

• Employees with a serious health condition (physical or mental) that makes them unable to perform their job.
• The birth of or adoption of the employee’s child, or the placement of a child with the employee for foster care.
• Those who must care for an immediate family member with a serious health condition.
• Employees with “qualifying exigencies” related to a spouse, child, or parent on covered active military duty or an impending call to covered active duty.
• For employees whose family members are a current military servicemember or a recent veteran with a serious injury or illness.

The FMLA applies to several types of employers: all public agencies and schools (public and private) and private employers with 50 or more local employees (within 75 miles of the work site). Not all employees are covered under the FMLA — only those who’ve been with the company a year or more and worked at least 1,250 hours in the previous 12 months.

“FMLA broadens protections and coverage across a range of situations preventing the employee from working,” said Jim Pendergast, senior vice president and general manager at altLINE. “That could be medical, but it might also be because of a family emergency, an adoption or because of situations related to military deployments.”

Workers who are eligible for leave under the FMLA can take up to 12 weeks of unpaid leave, during which their employer-provided health insurance remains in effect. After the 12 weeks, they get their old job or an equivalent position back. What about eligible employees who must care for an immediate family member who’s a covered servicemember with a serious injury or illness? They are eligible to take up to 26 workweeks of unpaid, job-protected leave within a single 12-month period.

Employees must notify their employers that they intend to seek leave under the FMLA, and, in turn, employees must provide notice of their eligibility. Employees aren’t required to share a medical diagnosis, according to the Department of Labor. But, they must provide enough information for the employer to be able to determine whether the leave is covered under the FMLA. Such proof includes a certification from a health care provider to verify a medical leave.

This notification process is complex and completed through official forms provided by the Department of Labor, Berg said. So, employers should be sure to fill out the forms properly and within the time frame outlined by the DOL, ideally working with a qualified HR professional.

Who is covered under disability leave?

Most employees are eligible for disability leave as long as they meet the insurance provider’s requirements. Many providers have eligibility requirements regarding the employee’s minimum earnings, how long they’ve been an employee, and whether they are a full-time or part-time worker.

In addition, to qualify for disability leave under the ADA, the employee must have a physical or mental impairment that significantly limits one or more “major life activities” or “major bodily functions.” Chronic conditions like cancer and Crohn’s disease can also qualify as disabilities.

The ADA defines the following as major life activities:

• Walking
• Seeing
• Sitting
• Hearing
• Speaking
• Breathing
• Learning
• Lifting
• Performing manual tasks
• Taking care of oneself

These are some of the qualifying major bodily functions that may be impaired:

• Immune system
• Digestive system
• Cell growth
• Neurological system and brain
• Circulatory system
• Endocrine system
• Reproductive system

“If you don’t know, as an employer, whether or not that condition does qualify as a disability, you have a right to request reasonable medical documentation from an employee to certify that they actually have a covered disability,” said Berg.

What are the two types of leave under disability insurance benefits?

There are two primary types of leave offered under insurance disability benefits: short-term and long-term.

• STD: STD leave is a business insurance benefit that provides compensation or income replacement for nonjob-related injuries or illnesses that leave an employee unable to work for a limited time. STD policies will pay for employee benefits for a limited time, usually three months to a year. Generally, short-term plans are less expensive when purchased as part of a group plan and offered as a company-paid benefit. Generally, a private insurance program provides compensation when an employee is on STD leave. Employees must be covered by an STD policy to use the benefits. As an employer, you can offer STD plans to your employees, or they can choose to purchase one elsewhere.
• LTD: LTD leave pays benefits for anywhere from two years to life, depending on the employee’s condition and the policy. The longer the benefit period, the higher the premium.

The two types of policies are designed to work together. STD leave covers an employee immediately following a serious injury or illness. LTD insurance is meant to replace income if an employee is kept out of work past the end of their STD benefits period.

What are an employer’s responsibilities regarding disability leave and disability insurance benefits?

As an employer, you must know what you are required — and not required — to provide or do regarding disability leave. You must also know whether it’s unpaid disability leave required under the ADA or FMLA, or leave that’s covered under disability insurance. Here are six crucial rules to understand if you’re starting a business or already running one.

1. You are required to purchase STD insurance in certain states.

If you are an employer in California, Hawaii, New Jersey, New York or Rhode Island, you are required to purchase STD insurance for your employees. Depending on your state, you may be able to choose between a state and private policy. You might also have the choice of paying for the policy yourself, having employees pay it or sharing the cost.

2. You are only required to provide disability leave by law in certain situations.

As an employer, you can establish policies that apply to all employees regardless of disability status. However, you can’t refuse leave to an employee with a disability if other employees are offered leave. You might also be required to provide reasonable accommodations, such as flextime benefits or unpaid leave to an employee with disabilities. Work with your HR team or an employment lawyer to ensure you’re in compliance with federal, state and local laws governing disability leave.

3. You are not required to provide disability leave so an employee can care for their relative under the ADA.

Under the ADA, an employee cannot request leave as an accommodation to care for a family member; employees can only use disability leave for themselves. However, the FMLA covers unpaid leave for an employee to care for a family member with a serious illness.

4. You are required to hold an employee’s job for them while they are on leave.

Under the FMLA, when the employee returns from leave, you must give them either their old job or a job that provides the same salary and benefits as their previous position. Additionally, you must continue to provide the employee with health insurance during their leave.

5. You are not required to pay employees who are on disability leave under federal law.

As an employer, you are not required to provide paid leave under the ADA or FMLA. However, California, Colorado, Connecticut, Delaware, Maine, Massachusetts, Maryland, Minnesota, New Jersey, New York, Oregon, Rhode Island, Washington and the District of Columbia have all passed legislation requiring pay during family leave under state law. Employers should always ensure they are in compliance with state and local regulations as well as federal law.

6. You must have a certain number of employees for the FMLA and ADA to apply.

The ADA and FMLA only intersect if your business has 50 or more employees. This is because the ADA applies to businesses with 15 or more employees, while the FMLA applies to businesses with 50 or more. Each law also has different parameters regarding what qualifies an employee for leave. Here are several examples:

• If an employee is injured on the job, they are covered by workers’ compensation and must go through the workers’ compensation claims process.
• If an eligible employee has a serious health condition, they can request leave under the FMLA. Their health care provider must certify that their medical condition meets the criteria of a serious health condition under the FMLA.
• If the employee’s condition meets the definition of a disability, they are covered by the ADA.

Erin Donaghue and Jennifer Dublino contributed to this article. Source interviews were conducted for a previous version of this article.