If you're off work recovering from a physical or mental illness, the day-to-day responsibilities of your job might be the last thing on your mind. But some job-related questions remain crucial when you're out on long-term disability: Will you still have a job when you return? And if not, will you still be entitled to disability benefits?
Whether your job is protected while you're out on disability depends on whether you're taking time off under laws such as the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA) or are collecting short-term or long-term disability benefits through your employer's insurance.
If you're receiving short-term or long-term disability benefits, it's likely through your employer's insurance policy, which doesn't provide any job protection while you're out on disability. This is because the purpose of disability insurance is to provide income protection if you're unable to work. It does not offer any measure of job security. Your employer is under no obligation to continue employing you simply because you're receiving disability benefits.
However, if you take disability leave under a medical leave law like the FMLA, or are entitled to reasonable accommodations under a disability law like the ADA, your job is more likely to be protected in your absence.
The FMLA allows certain workers to take up to 12 weeks of unpaid, job-protected leave per year to deal with personal or family medical issues. FMLA leave, which often runs concurrently with the receipt of short-term disability benefits, can be used to recuperate from your own illness or injury.
You can't legally be discharged for as long as you're on FMLA leave. However, exceeding twelve weeks of leave—even by a day—leaves you open to termination.
When you return from unpaid leave, your employer must give you back your old position or one that is substantially similar, assuming you can still perform the essential duties of the job.
For FMLA to apply, the following two conditions must be met:
If you wish to take FMLA leave, you should inform your employer as soon as possible that your requested time off is related to a family or personal medical situation.
Even if you're not entitled to unpaid leave under the FMLA, you may be protected by state laws that extend FMLA-like benefits to employees of small and medium-sized companies. Check with your human resources department, your state's department of labor, or an employment law attorney to learn more about the job protection laws in your state.
The ADA requires employers with 15 or more workers to make reasonable accommodations for employees with disabilities. The ADA defines a disability as a physical or mental impairment that "substantially limits a major life activity."
Under the ADA, before firing a disabled employee for not being able to do their job, an employer must first try to work with the employee to accommodate their disability.
The employer must interact with the employee to design accommodations that might allow the disabled employee to continue working. For example, the employer could offer a more flexible schedule, wheelchair ramps, ergonomic furniture, or some other accommodation that might allow the disabled employee to continue to perform the essential duties of the position. The employer does not need to offer accommodations that would cause the business "undue hardship." Generally, courts have found that larger companies are better able to absorb the costs of accommodations than small businesses.
You can also request unpaid leave as a reasonable accommodation. Your employer is likely to allow you to take unpaid leave if you're expected to return in a reasonable amount of time and to be able to do the job when you return (with further accommodations, if necessary).
If your employer has attempted to make various reasonable accommodations for you and you're still not able to perform the essential duties of the job (or if no reasonable accommodations exist that would allow you to work), the ADA doesn't prevent the employer from firing you.
If you're terminated while you're out on disability, you're probably still entitled to disability benefits.
As long as you were covered by short- or long-term disability insurance at the time you became unable to work, you may file for short-term or long-term disability benefits, regardless of whether you're still on your employer's payroll. The decisive question is whether you were insured on your disability onset date (when you became unable to work), not whether you're insured on the date you file your claim.
Think of it this way: If John has a car insurance policy that expires on August 31, he'll be covered for damage to his car from a hailstorm that occurred on August 30, even if he's been on vacation and doesn't file his claim until September 3, after his policy has expired. Disability insurance works the same way.
Ask your employer for a copy of your long-term disability plan, which will state the eligibility requirements for both short-term and long-term disability coverage. The requirements are generally the same for both policies. For instance, if the short-term disability plan requires you to work full-time (at least 35 hours per week) to be eligible for benefits, the long-term plan should as well.
Make sure that you were working the required number of hours as of the date you filed your short-term disability claim. If you were, you should be eligible for long-term disability benefits as well, even if you were no longer employed when you file the claim for long-term benefits.
If your employer or its insurance company tries to deny you long-term disability benefits, or if you've been discharged from a job while on disability leave and you think you should have been protected under the FMLA or ADA, you may want to contact an employment or disability law attorney to discuss your options.
Updated December 27, 2022