Fmla & Std

What is the name of your state? New York

Hi folks:

I'm not sure if this is the correct forum, but hopefully it is the closest for my questions.

I will be taking maternity leave under STD (6 to 8 weeks depending on how the baby arrives) sometime in November. I am also eligible for 12 weeks of FMLA. Apparently here in NY, STD and FMLA run concurrently, at least according to the information given to me by my HR director (of whom I think I have no reason to doubt). However, I have had other folks try to tell me FMLA and STD do NOT run concurrently, and FMLA should kick in after STD has ended. Personally I think they are wrong, but decided to ask the experts.

So 2 questions:
How is it FMLA is allowed to run concurrently? Does this mean if one is out on STD for a period of time, there is no guarantee of a job to return to or insurance coverage, even if STD is allowed (assuming one does not use FMLA for reasons such as not yet employed for a year).

Are there states which do not count time off on STD as part of FMLA (so that FMLA would not start till STD ends)?

Thanx
Allison

Yes, this is the correct forum.

Yes, FMLA and STD can and most often do run concurrently. They can run concurrently because FMLA and STD are two different things. FMLA is protected leave. STD is income replacement.

You are entitled under the law to 12 weeks of FMLA. You are entitled to as much or as little STD as is defined under your policy. (NY is one of only 5 states where STD is mandatory; in most states, an employer is not obligated to provide STD at all.) Generally STD is for between 13 and 26 weeks, depending on how the policy is written; you are eligible for STD until either your medical condition has ended (or improved to the point where you are no longer eligible) or the end of the time provided in the plan, whichever comes first. FMLA ends when you are medically able to return to work, or the end of 12 weeks, whichever comes first.

Unless your state specifically provides for an extension of FMLA (NY does not - nor does any state tie the extension to STD) then your employment can be terminated if you are unable to return to work at the end of 12 weeks, WHETHER YOU ARE STILL COLLECTING STD BENEFITS OR NOT. STD generally does NOT end with your employment; if you are still eligible and there is still time on the policy, you can continue to collect STD benefits even after your employment has been terminated.

First off, thank you cbg, for your prompt response - its well appreciated!

Ok, I think I understand. My confusion is coming from my STD. As my HR director explained to me, the sick days I have accumulated are used for the 6-8 weeks (30-40 days) I will be out on maternity leave (the additional unpaid time off is covered by FMLA). So it appears STD is not coming from any sort of state STD or anything the district (I work for a NYS public school district) has paid into. I actually have 90 days accumulated.

I may have to go for further surgery after the baby arrives due to some pregnancy related complications; its been explained to me that I may have to wait up to 2 months to have the surgery if I have a c-section. While I see that I have to hope I can have it done during the 12 weeks of FMLA, it just seems confusing to this layperson that, even with 90 accumulated sick days, I stand a chance of losing my job if I do not return within the 12 weeks.

In a nutshell, am I correct in assuming that if I need to take another week or 2 to recover from surgery in the future (less then 12 months from the FMLA 12 weeks I feel I need to take off for the baby), even though I have the sick time available, I will still be putting my job in jeopardy? That's how it sounds to me, but I realise I have no expertise in this area.

Lastly, if I can manage to have the surgery done within the 12 weeks (but post 6-8 weeks of STD), will I be able to apply for STD/use more sick days for recovery? I realise I need to ask the HR director, but want to know from a legal angle.

Again, thank you,
Allison

Although the law only requires an employer to give you 12 weeks of leave and permits the employer to term you if you are unable to return after that time, by no means all employers do so. While they legally can term you after 12 weeks, you are not *necessarily* putting your job at risk if you need additional time; that's up to your individual employer. Many will be willing to grant additional leave time, particularly if it will only be another week or two. That's something you'll have to take up with them.

The law does not dictate when or whether you can apply for STD. That's a contractual thing. If the terms of the STD policy say you're eligible, you can apply. But remember, STD is NOT leave. It is income replacement. The leave, if it is over and above the 12 weeks of FMLA, will be at the pleasure of your employer; the STD only provides you with income so that it's not fully unpaid time.

Clarification of first question

First off, thank you for the quick response.


Let me clarify, I am trying to determine if the company decides not to let me work the last 3 days of my 14 day notice (the first 11 of which are the final days of my 12 week FMLA), will I still have to pay for the insurance for the previous 10-12 weeks. It seems that if that cut me short on my notice and don't let me earn back the insurance premium at work then that is something "beyond the employee's control." I am not in a position, nor do I want, STD. LMK if you need further clarification. It's more about the company trying to recover the insurance premium than job preservation.

It's not that I don't understand the question. It's that you don't like the answer I am providing.

In my opinion, if you give a two week notice timed so that you would still need to come back to work for three days, and if your employer says no, don't bother coming back for those three days, you would still have to repay the employer for the insurance premiums IF THE EMPLOYER ASKS YOU TO DO SO because you, not the employer, initiated your not returning to work. Even if the employer accepts your resignation immediately, you, not the employer, made the decision to end your employment.

I realize that what you want to hear is that the employer would be prohibited from asking you for the insurance premiums back if they do not allow you to come back to work for those three days, but in my opinion that is not the case. You DO have control over whether you return to work; you've chosen not to do so and are trying to manipulate the situation to gain all of the benefits.