Maternity Leave & Short Term Disability

nkereina · Mar 30, 2015

Wanted to share a work story that makes me scratch my head.
I work with a woman (we’ll call her Jan) who found out she was pregnant in Fall 2014. In early November 2014, she fell ill with severe morning sickness and was put on bed rest with an IV drip by her doctor. She was out of work for 9 weeks on short term disability (we’re in New York). She was expecting to have another 3 weeks of short term disability when she has the baby in May, and would do the rest of her maternity leave unpaid under FMLA for another 6-8 weeks (a maximum of a 12 week maternity leave).

Our employer is now telling Jan that after her remaining 3 weeks of short term disability is up when the baby is born, she will have to resign from her position and then re-apply for it when she’s ready to come back. No telling if they’ll hold her position for her They said you get 12 weeks of short term disability in a rolling calendar year, so the fact that it’s a new calendar year is irrelevant. They said FMLA and short term disability run simultaneously – FMLA holds your position while short term disability pays you. They aren’t separate.

Has anyone been in a similar situation or knows someone who has? I get that the law is the law, but it’s almost as if she’s being punished for getting sick early on in her pregnancy. Her options are either quit her job or come back to work with a 3 week old at home. Any HR pros think there’s something wrong here or is this just an unfortunate situation?

Gracie09 · Mar 30, 2015

From DOL website. There may be different state specific rules but under the federal rules they can run concurrently. It stinks for her and is a reason why people should know the terms of their disability policies. When I was on bedrest for preeclampsia and HELLP syndrome, my disability covered my salary at 100% until birth, then 6 weeks after birth and then my state paid family leave kicked in for several weeks (maybe another 6) at a lower level. Then I was able to take up to 6 months (from the date of birth) total leave with the last bit unpaid. But I was able to save a bunch of money from my disability to carry us through.

Medical and disability-related leave rules: Eligible employees can take up to 12 weeks of leave for treatment of or recovery from serious health conditions. The FMLA's definition of a serious health condition is broader than the definition of a disability, encompassing pregnancy and many illnesses, injuries, impairments, or physical or mental conditions that require multiple treatments and intermittent absences. Generally, things like cosmetic surgery, colds, headaches, and routine medical and dental care are not included. FMLA leave is unpaid, but employers may require employees to concurrently take paid leave, such as accrued vacation or sick leave, or employees may elect to do so.

nkereina · Mar 30, 2015

Gracie09 said:
disability covered my salary at 100% until birth, then 6 weeks after birth and then my state paid family leave kicked in for several weeks (maybe another 6) at a lower level. Then I was able to take up to 6 months (from the date of birth) total leave with the last bit unpaid.

That's pretty good. What state are you in? Did your employer offer optional additional coverage you could pay for during open enrollment? Ours doesn't and since she maxes out at 12 weeks disability, her hands are tied. She was fine with not getting paid but she never thought she'd actually be forced to quit. And with the way our office is, I would NOT be surprised if they didn't hold her position. And if they do hold it, she'll lose the last 4 years of seniority since she'll get a new anniversary date.

shoney · Mar 30, 2015

nkereina said:
Wanted to share a work story that makes me scratch my head.
I work with a woman (we’ll call her Jan) who found out she was pregnant in Fall 2014. In early November 2014, she fell ill with severe morning sickness and was put on bed rest with an IV drip by her doctor. She was out of work for 9 weeks on short term disability (we’re in New York). She was expecting to have another 3 weeks of short term disability when she has the baby in May, and would do the rest of her maternity leave unpaid under FMLA for another 6-8 weeks (a maximum of a 12 week maternity leave).

Our employer is now telling Jan that after her remaining 3 weeks of short term disability is up when the baby is born, she will have to resign from her position and then re-apply for it when she’s ready to come back. No telling if they’ll hold her position for her They said you get 12 weeks of short term disability in a rolling calendar year, so the fact that it’s a new calendar year is irrelevant. They said FMLA and short term disability run simultaneously – FMLA holds your position while short term disability pays you. They aren’t separate.

Has anyone been in a similar situation or knows someone who has? I get that the law is the law, but it’s almost as if she’s being punished for getting sick early on in her pregnancy. Her options are either quit her job or come back to work with a 3 week old at home. Any HR pros think there’s something wrong here or is this just an unfortunate situation?

NYS short term disability is for up to 26 weeks in a 52 week period.

From their website:

Benefits will begin on your eight consecutive day out of work; the first seven days is an unpaid waiting period. You can receive benefits for a maximum of 26 weeks in a 52-week period. You will receive payment every two weeks.

For pregnancy, women are covered for six weeks after a normal pregnancy and eight weeks after a Caesarian section (those these lengths may be extended if there are complications). WOmen filing for post-childbirth benefits receive the same payment as those filing for other disabilities.

I always took FMLA to be for unpaid leave and it is 12 weeks. So, for my first son, I worked up until I gave birth. I had a c-section, so I was disabled for 8 weeks and was able to take an additional 4 weeks off without pay. My job paid my full salary during those 8 weeks.

With #2, I was working part-time for the same company and lost my short-term disability of 100% pay. I took off 2 weeks prior because NYS at the time let you. Again had a c-section and received an additional 8 weeks of NYS disability pay. I was entitled to 2 additional weeks of unpaid leave under FMLA. ( Because I took 2 weeks off prior)

Luckily, they were a great company and I went back to work both times at 16 weeks!

It is very confusing.

Seems like she will receive at least 6 weeks NYS disability pay after the baby is born.

I would look into it from the FMLA side of things.

nkereina · Mar 30, 2015

shoney said:
NYS short term disability is for up to 26 weeks in a 52 week period.

From their website:

Benefits will begin on your eight consecutive day out of work; the first seven days is an unpaid waiting period. You can receive benefits for a maximum of 26 weeks in a 52-week period. You will receive payment every two weeks.

For pregnancy, women are covered for six weeks after a normal pregnancy and eight weeks after a Caesarian section (those these lengths may be extended if there are complications). WOmen filing for post-childbirth benefits receive the same payment as those filing for other disabilities.

I always took FMLA to be for unpaid leave and it is 12 weeks. So, for my first son, I worked up until I gave birth. I had a c-section, so I was disabled for 8 weeks and was able to take an additional 4 weeks off without pay. My job paid my full salary during those 8 weeks.

With #2, I was working part-time for the same company and lost my short-term disability of 100% pay. I took off 2 weeks prior because NYS at the time let you. Again had a c-section and received an additional 8 weeks of NYS disability pay. I was entitled to 2 additional weeks of unpaid leave under FMLA. ( Because I took 2 weeks off prior)

Luckily, they were a great company and I went back to work both times at 16 weeks!

It is very confusing.

Seems like she will receive at least 6 weeks NYS disability pay after the baby is born.

I would look into it from the FMLA side of things.

I believe our employer told her NY short term disability is a minimum of 12 weeks and a maximum of 26 weeks, with your employer determining what they will allow for as long as its within that range. Our employer offers the bare minimum - 12 weeks.

shoney · Mar 30, 2015

I believe you are talking about what your employer pays. Like with my first son, my employer offered short term disabiltiy insurance that covered the salary 100%.
NYS disability pays up to $170 a week. It isn't much but it is something. She would be entitiled to that. Bear in mind the 1 week waiting period.

TheIncredibles! · Mar 30, 2015

It's an unfortunate situation. Will she have accrued any additional vacation days by then? If so she can try and use them to extend her leave.

nkereina · Mar 30, 2015

shoney said:
I believe you are talking about what your employer pays. Like with my first son, my employer offered short term disabiltiy insurance that covered the salary 100%.
NYS disability pays up to $170 a week. It isn't much but it is something. She would be entitiled to that. Bear in mind the 1 week waiting period.

Yes you're right. I think she would get that, but it wouldn't change things as far as her having to quit her position. I know that's not tied to disability as far as the state is concerned, but our employer links their policy to that.

TheIncredibles! said:
It's an unfortunate situation. Will she have accrued any additional vacation days by then? If so she can try and use them to extend her leave.

I believe she used most of her accrued time when she went out sick, but she'll have another two or three days by then she can probably use.

I don't have kids yet but this whole thing really makes me feel for the working moms that have to go through this! This is the last thing a mom should have to worry about during such a happy time

Gracie09 · Mar 30, 2015

nkereina said:
That's pretty good. What state are you in? Did your employer offer optional additional coverage you could pay for during open enrollment? Ours doesn't and since she maxes out at 12 weeks disability, her hands are tied. She was fine with not getting paid but she never thought she'd actually be forced to quit. And with the way our office is, I would NOT be surprised if they didn't hold her position. And if they do hold it, she'll lose the last 4 years of seniority since she'll get a new anniversary date.

NJ. It was the standard package offered by my employer. It was actually one of the reasons I took the job there. They had a great benefits package. I ended up going back to work with over a month of vacation time as I opted not to take any while on leave.

shoney · Mar 30, 2015

Seems like a very rigid interpretation. I know lots of women who went beyond the 12 weeks when it comes to giving birth and were able to return to their jobs, myself included.

I do know someone who returned only to find they had been demoted to a much lower position but kept their higher salary. They were forcing her out. She knew it and left.

I would have her make some phone calls to someone at the FMLA and NYS disability. She may not get anywhere because she is looking to take off more than 12 weeks. That is just awful! Good luck to her!

NotUrsula · Mar 30, 2015

Having BTDT, it sounds correct to me, though unfortunate. I suppose this employer won't allow simple unpaid leave? (I also was forced to cut short maternity leave because I had to stop working a little bit before delivery; though in my case it was thankfully less than a week.) Unfortunately, it is absolutely true that an employer can mandate that your FMLA leave run concurrently with your paid leave, whether or not you are covered by short-term disability policies.

mom2rtk · Mar 30, 2015

FMLA passed when I was expecting my first. I didn't even have short term disability (plenty of employers don't offer it) but I just wanted the chance to take 12 weeks off, even if most of it was without pay.

I knew going into it that 12 weeks was it though, so if I needed to take off prior to the birth, that would come off my total after the birth. I worked through the day before delivery the first time and the day OF delivery with the second.

Like the PP, I'm wondering if she has asked about unpaid leave. She should be allowed 6 weeks to recover medically from a traditional delivery or 8 weeks from a C-section.

HM · Mar 30, 2015

When I was pregnant with my daughter I had to go on bed rest for six weeks. I was not eligible for short term disability even though it was doctor ordered. After that, I dropped my policy. I'm actually surprised she could use it last November.

runwad · Mar 30, 2015

Wow that sucks I feel for "Jan". I hope for her sake she is able to extend her leave even if unpaid. I can't imagine going back to work so soon. With my first I was off the 12 weeks and got paid 9 of them using my sick time and vacation pay, no short term disability. Then my employer let me go back to work part time (mornings)for 12 weeks. It was great. My husband took paternity leave for 12 weeks too and worked the other half of the day (afternoons) I was home with baby.

We were able to do that with all 3 of our kids so they didn't go to daycare until 6 months old. After our 3rd was born, I just went to a part time schedule. I feel so bad for working moms today.

Skippy918 · Mar 30, 2015

She has 3 weeks of Fmla left, but post childbirth should reset the short term disability and she should get 6 or 8 weeks. They will only have to hold her job for 3 weeks post baby. I think that's why they are saying she can quit and come back. But Fmla and short term disability are separate. I wonder if they are telling her that to avoid paying disability.

Dax · Mar 31, 2015

From my experience, STD and FMLA are not the same thing. FMLA covers your job for a maximum of 12w. This can be taken at once, or intermittently. STD basically covers you for the time you are out. My policy was work provided. I was out for 8w due to my C-Section. The first 2 weeks of my leave were not covered under FMLA for me, because I was still under 1y of employment. It kicked in like the second week of my leave. My STD paid me 60% of my pay after I did a 2w wait.

From my understanding, and this is just FL mind you that I am speaking of, If I would have gone out on bedrest, I would have continued to be paid my STD benefits for up to 26w I think it was, then it would roll into LTD. But I was also told that if I came back to work, then went out again, that it would "reset" since it was technically a new case.

Mickeyluver37 · Mar 31, 2015

While it's true that FMLA only covers 12 weeks in a 12 month period, this interpretation is absurd. Is there anyone in upper managemement that she has in her corner that can help her navigate this with HR? It's probably not technically illegal for them not to hold her job. However, anyone with common sense will realize it will cost them more to replace her than to work with her on this situation.

State Disability and F(ederal)MLA are 2 different things though. Most states don't even have state disability. I was very fortunate to have employer provided STD that paid out at 100% while I was on maternity leave. I also don't think that it is correct for the employer to say that STD is a minimum of 12 weeks- STD should depend on what the doctor's note says. Unfortunately, the standard for birth is 6 weeks, or 8 for a c-section. So even if she hadn't used any of her disability before giving birth, it's unlikely that she'd get 12 weeks STD paid. Usually after 6 weeks, FMLA consists of vacation, sick time or unpaid. I was very lucky in that my employer provides "maternity leave" so that most of those weeks were paid.

Terapin · Mar 31, 2015

I'm sorry you guys in the US have to go through this. What a lot to navigate! Hope the OP's friend can catch a break.

nkereina · Mar 31, 2015

shoney said:
I would have her make some phone calls to someone at the FMLA and NYS disability. She may not get anywhere because she is looking to take off more than 12 weeks. That is just awful! Good luck to her!

Ideally, she'd like to take the 12 weeks she'd *normally* be entitled to after the birth of her baby. She'd even settle for the 6 weeks. But our employer has said since she's already used up 9 weeks of STD and FMLA (they run them concurrently), then she's only entitled to 3 more weeks. It's a rolling 12 month calendar year.

Skippy918 said:
She has 3 weeks of Fmla left, but post childbirth should reset the short term disability and she should get 6 or 8 weeks. They will only have to hold her job for 3 weeks post baby. I think that's why they are saying she can quit and come back. But Fmla and short term disability are separate. I wonder if they are telling her that to avoid paying disability.

It unfortunately doesn't reset, at least not in NY. They do a rolling 12 month calendar year, so it wouldn't rest for her until this November, when it's been a year since she went out due to her morning sickness.

Definitely an unfortunate situation that I think is a combination of our employer's tough policies coupled with NY laws. She did inquire about unpaid leave after her remaining 3 weeks is up, she has no problem with not getting paid. But our employer won't allow unpaid leave, which is why they are telling her she needs to resign and then reapply. Her direct manager tells her they will do everything they can to hold her position to make sure she can come back, but of course there are no guarantees.

HM · Mar 31, 2015

I went back to work after the birth of my daughter at 3 weeks. It's doable. And I exclusively breast fed (had to buy a good pump).
My DH had lost his employment at the end of my pregnancy when the company he worked for was bought and moved to another state. I had to go back to work in order for us to have money coming in besides his unemployement. Luckily they let me work part time for the first couple weeks. Do you think she has that option? Could her DH take paternity leave and stay home with the baby once she's back at work?

I know it's not ideal. But not all moms and dads have the 'luxury' of being able to spend 12 weeks at home with their baby. You do what you have to do to keep your job, get your paycheck, and take care of your family.

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