Your Right to FMLA Leave for a Short-Term Disability

When you take time off work for a short-term disability—your own or a family member’s—your job might be protected by the Family and Medical Leave Act (FMLA). The FMLA is a federal law that gives eligible employees the right to take unpaid, job-protected leave for serious illnesses and injuries, including many short-term disabilities, and to care for family members. The FMLA gives eligible employees up to 12 weeks of time off, and in many cases, you can use FMLA leave and short-term disability benefits at the same time.

Below, we explain how FMLA short-term disability leave works, including who qualifies, when you can use FMLA leave with short-term disability benefits, and your right to return to work when your leave is over.

What Is FMLA Short-Term Disability Leave?

FMLA short-term disability leave is job-protected, unpaid time off that eligible employees can take during a temporary disability. The FMLA provides up to 12 weeks of leave for a "serious health condition," while short-term disability insurance replaces part of your income during that time. Although FMLA doesn’t pay benefits, it can run at the same time as short-term disability benefits while you recover, get treatment, or manage ongoing care.

Many employers provide short-term disability insurance (STD), and some states offer short-term disability benefits (SDI or TDI). These short-term benefits usually cover about 50%-70% of your weekly earnings and can generally be used while you’re taking FMLA leave for an illness or injury. And many states now offer paid family and medical leave, which covers about 50%-90% of your weekly earnings for a short amount of time.

Under the FMLA, serious health conditions can involve inpatient care, ongoing treatment, or a temporary inability to work requiring medical attention. That can include:

• chronic conditions
• serious illnesses (like cancer)
• pregnancy-related incapacity, and
• recovery from surgery or other medical treatment.

You can also use FMLA leave when you’re expecting a new child, to care for a family member with a serious health condition, or to address qualifying military family needs. (See “Other Types of Leave Covered by the FMLA” below.)

Who Qualifies for FMLA Leave for a Short-Term Disability?

You qualify to use FMLA leave for a short-term disability if you work for an employer that's covered by the FMLA and you’ve worked for your employer for a certain number of months and hours.

Which Employers Are Covered by the FMLA?

Employers must comply with the FMLA if they have at least 50 employees within a 75-mile radius. This includes full-time and part-time employees. (29 C.F.R. § 825.104.) Employees on leave who are expected to return to work are also counted when determining FMLA coverage.

Which Employees Are Eligible for FMLA Short-Term Disability Leave?

Not all employees who work for covered employers are eligible to take FMLA leave for a short-term disability. To qualify for FMLA leave, you must satisfy all of the following requirements. (29 C.F.R. § 825.110.)

• You must have worked for your company for at least 12 months
• You must have worked at least 1,250 hours for your employer in the 12 months immediately before the date your leave will start. (This works out to about 24 hours per week.)
• You must work at a site where your employer has at least 50 employees within a 75-mile radius.

What Counts as a Short-Term Disability Under FMLA?

Under the FMLA, any serious health condition that temporarily prevents you from performing your essential job duties can be a short-term disability. To qualify for FMLA leave, you need to be under the continuing care of a doctor and be unable to work for more than three days or be a patient at a hospital or nursing facility. Less serious medical conditions, such as a sprained ankle, pink eye, or the flu (without complications), won't qualify for FMLA short-term disability leave.

Here are some examples of short-term disabilities for which you could use FMLA leave:

• multiple treatments of dialysis, chemotherapy, or radiation
• a severe illness, like COVID-19 or pneumonia, that requires you to stay overnight in a hospital or incapacitates you for three or more days and requires medical treatment
• incapacity due to pregnancy, childbirth, or complications following childbirth, and
• multiple treatments for restorative surgery following an accident or injury.

But remember, FMLA leave is unpaid.

How Long Does FMLA Leave Last for Short-Term Disabilities?

You’re entitled to up to 12 weeks of job-protected leave in a 12-month period when you use FMLA leave for your own short-term disability. Most employers calculate this 12-month period using a “rolling” method, which measures the 12 months backward from the date you use leave. Others use a fixed calendar year or fiscal year.

You don’t have to take your FMLA leave all at once. If your short-term disability requires ongoing treatment or recovery, you can take leave intermittently—such as a few hours or days at a time—or work a reduced schedule if it’s medically necessary.

Most other types of FMLA leave can also be taken intermittently and are limited to 12 weeks in a 12-month period, while military caregiver leave provides up to 26 weeks.

Can You Use FMLA and Short-Term Disability Together?

Yes, you can use FMLA and short-term disability together in many cases. FMLA provides job-protected, unpaid leave, and if you qualify for a separate STD insurance policy or state SDI or TDI program, short-term disability benefits can replace part of your income during that same period.

Your employer can require you to use accrued paid leave—such as sick time or vacation—during your FMLA leave, or you can choose to do so, depending on your employer’s policy. So, if you’re taking FMLA leave and you don’t have short-term disability benefits, you could use your accrued paid time off (PTO) to get paid for some or all of that time off.

While you’re on FMLA leave, you’re entitled to continue your employer-provided group health insurance, whether or not you receive short-term disability benefits. But if you usually pay part of your health insurance premium, your employer can require you to continue paying your share.

How to Request FMLA Short-Term Disability Leave

To take FMLA leave for a short-term disability, you’ll need to follow your employer’s notice requirements and complete the necessary paperwork.

Do You Have to Give Advance Notice Before Your FMLA Leave?

If you need disability leave for a foreseeable reason (such as surgery scheduled long in advance or having a baby), you must give your employer notice at least 30 days in advance. (29 C.F.R. § 825.302(a).)

If you need disability leave for an unforeseeable reason—such as being hospitalized following an accident—you must give as much notice as is practical under the circumstances.

Filing a Request for FMLA Leave for a Short-Term Disability

Your employer will provide you with paperwork explaining your rights and obligations under the FMLA. You might have to submit a specific FMLA request form. If you're taking leave for a short-term disability, you might also need to provide medical certification from your health care provider.

For more information, see our article on FMLA's required notices and certifications.

What If Your Employer Denies Your Request for FMLA Leave?

Employers are legally prohibited from denying valid FMLA requests. If yours does, start by checking whether the denial is due to a fixable issue like missing paperwork or incomplete medical certification—if so, correct it and resubmit.

If it's a larger issue, like your employer doesn't recognize your health condition as serious, you can ask your employer to explain the denial or review your eligibility. You might also have the right to challenge the decision if it was made in error. Employers are prohibited from interfering with, restraining, or denying your exercise of any FMLA rights. (29 U.S.C. § 2615.)

If your employer denied FMLA leave improperly or refused to let you take all the time off you were legally entitled to, and talking to your employer doesn't resolve the issue, you could consider legal action. You can file a complaint with the Department of Labor's Wage and Hour Division (online or by phone). The DOL will investigate your complaint and could force your employer to grant you FMLA leave. Alternatively, you could file a lawsuit, but FMLA lawsuits are expensive and difficult to win. For more information, see our article on what you can win in an FMLA case.

Getting Your Job Back After FMLA Short-Term Disability Leave

The law protects your job while you’re on leave, meaning an employer can’t fire you just for taking FMLA leave and must restore you to the same position (or an equivalent one) when your leave ends.

When you return from approved FMLA leave, you’re generally entitled to be reinstated to your former position or an equivalent job, including the same pay, job duties, shift, and work schedule. Your employee benefits must also be restored, with limited exceptions. There are a handful of situations when reinstatement might not be required (for example, if your job was eliminated while you were on disability leave), but these are exceptions to the general rule. For more information, read our article on returning to work from FMLA leave for a disability.

If your employer fails to reinstate you after approved leave, you might have the right to pursue legal action. This can include seeking reinstatement to your job, back pay, or other monetary damages. For more information, see our article on what you can win in an FMLA case.

If you don't have the same ability to do your job when you return because of a disability, your employer must try to accommodate you so that you can do the job with your impairments—if it's reasonable to do so. But if you can no longer perform the essential functions of the job, your employer may be allowed to let you go.

Other Types of Leave Covered by the FMLA

The FMLA gives employees the right to take time off for reasons other than short-term disabilities, including caring for a family member with a serious health condition, bonding with a new child, and for military family leave.

FMLA Leave to Care for a Family Member

If you’re covered by the FMLA, you can take job-protected leave to care for a seriously ill or injured family member, including your spouse, parents, and children.

But the FMLA doesn’t cover leave to care for other relatives, like grandparents or domestic partners, in most situations.

FMLA Parental Leave

FMLA parental leave is available if you're unable to work during pregnancy or to bond with your newborn, newly adopted child, or newly placed foster child.

You must take this leave within a year after the child arrives, or if necessary, you can use leave before the child arrives.

FMLA Military Family Leave

You can use FMLA leave for certain military family needs:

• Military caregiver leave lets you take time off to care for a covered service member or veteran (up to five years after separation) with a serious, service-connected injury or illness.
• Qualifying exigency leave lets you take time off to handle matters like childcare or legal arrangements when a family member is called to active duty.

For more information on the FMLA’s military family leave provisions, see Nolo's article on taking military family leave.