NYS short term disability and FMLA leave questions New York

[jaer]

Hi,
I am a private school teacher in NYS. I am pregnant and I had severe complications over the summer. My dr. put me on disability when I had to go back to school on 8/31/09. My EDD is 10/29/09. My school still has not sent in the disability forms yet or fully communicated with me. I need information before I really start bugging them because they haven't been very honest in the past. I have several questions.

1. Can they force me to take FMLA starting on 8/31 along with disability? When I first told them, they told me I had to take both at the same time. Are they two separate things or do they have to happen at the same time?

2. One of the few things they have asked me about is the sick days I have accrued. If I use them, doesn't that mean I have been working during this time? I am unsure of what answer to give and how that will affect everything.

3. Are there any time constraints on filing short term disability?

4. Can I take FMLA after I have been on short term disability? My dr put down on the disability form that I am on it from 8/31/09-12/14/09. I would like to extend that so I am home with the baby for 3 months after I deliver.

[cbg]

1. Can they force me to take FMLA starting on 8/31 along with disability? When I first told them, they told me I had to take both at the same time. Are they two separate things or do they have to happen at the same time?

FMLA is leave. Disabilty benefits are not leave; they are how you get paid while you are on leave. If you, the employer, and the medical condition all qualify for FMLA, then with limited exceptions they MUST apply FMLA. Neither you nor they have a choice under the law.

2. One of the few things they have asked me about is the sick days I have accrued. If I use them, doesn't that mean I have been working during this time? I am unsure of what answer to give and how that will affect everything.

No. Sick time is not days worked. It is not work time unless you actually were working. Time worked and time paid are two different things.

3. Are there any time constraints on filing short term disability?

Only in the sense that the sooner you apply, the sooner you get your benefits.

4. Can I take FMLA after I have been on short term disability? My dr put down on the disability form that I am on it from 8/31/09-12/14/09. I would like to extend that so I am home with the baby for 3 months after I deliver.

As above, FMLA and disability benefits are two different things. While they may, and often do, run concurrently, they do not otherwise affect each other. You are entitled under the law to 12 weeks of FMLA. IF you still have FMLA remaining after the birth, you are entitled to take the remainder for bonding time. But if the 12 weeks have been exhausted at the time of or prior to the birth, then what time you can take afterwards is at the pleasure of the employer. In fact, if FMLA has expired prior to the birth, any additional time you take BEFORE the birth is at the pleasure of your employer.

The above assumes that no legally binding contract or CBA expressly grants you additional time beyond the minimum the law requires.

[jaer]

[I]
FMLA is leave. Disabilty benefits are not leave; they are how you get paid while you are on leave. If you, the employer, and the medical condition all qualify for FMLA, then with limited exceptions they MUST apply FMLA. Neither you nor they have a choice under the law

As above, FMLA and disability benefits are two different things. While they may, and often do, run concurrently, they do not otherwise affect each other. You are entitled under the law to 12 weeks of FMLA. IF you still have FMLA remaining after the birth, you are entitled to take the remainder for bonding time. But if the 12 weeks have been exhausted at the time of or prior to the birth, then what time you can take afterwards is at the pleasure of the employer. In fact, if FMLA has expired prior to the birth, any additional time you take BEFORE the birth is at the pleasure of your employer.

The above assumes that no legally binding contract or CBA expressly grants you additional time beyond the minimum the law requires.

Thanks for replying so quickly. I thought they were required by law to give short term disablity (6 weeks vaginal delievery and 8 weeks for c-section) by law and that helped to protect your job. I know that FMLA does protect my job, just doesn't give me any pay. What happens if my dr. decides that I am unable to return to work 6 weeks after I have the baby and extends my short term disability? Assuming that my FMLA has run out?

[cbg]

Although NY is one of the few states that has mandatory disability benefits, they do not provide any job protection. If your FMLA has run out, then regardless of whether you are collecting disability benefits or not, unless you have a legally binding contract or CBA that grants you additional time beyond FMLA, your employer has no legal obligation to continue to hold your job.

This does not mean that they will NOT hold it beyond the limits of FMLA. Many, many employers will voluntarily provide more leave than the law requires. However, if FMLA has expired, they are not COMPELLED to do so, disability benefits or not.