If an employee (in NJ) is taking a leave under FMLA to have surgery and they are eligible to file for short term disability plus they have 4 weeks of vacation time, can they receive both the vacation pay and disability pay?

In the company I previously worked for, this was permitted as long as the employee wasn't using sick time which would effect disability payment. I'm confused whether this is permissible. Any opinions would help...thanks!

Marcie -

I think it would depend on the terms of the STD and vacation policies. Also, in NJ, I believe there is some state mandated disability pay. Our non-NJ STD policy offsets for the NJ state mandated payment and only allows one payment (either STD or vacation) for a paid day off. Our employees typically save their vacation and take the STD, unless it is in Q4 when we tell them they should use the vacation first (we have no vacation carryover to the following year).

hank

I agree with hank. You will have to review each of your policies to determine what can be done. You will also have to determine how the individual in NJ is being insured (directly through the state or through an insurance carrier).

Taking a step back and looking at the big picture, you do not want an employee to go on disability and get an increase in pay since there is no incentive for the employee to come back to work sooner rather than later. For example, say your employee is a quick healer and he can come back to work in 2 weeks rather than 4. If you have a 60% STD plan and the employee is going to receive an additional 100% of pay by using his vacation, do you think this employee is going to come back early?

What a lot of employers do so their employees don't lose the difference in pay like in the above example is allow them to cash in their vacation time to get back up to 100% of pay, but not over it. Some employers will only require a half a day of vacation to allow the employee the difference in what is being paid, while others will require a full day. It really depends on company policy. Please let me know if you would like to discuss further.

Thanks for this information. The employer policy requires the employee to exhaust their vacation while on FMLA leave. Since this is the case and they will be disabled, shouldn't they be permitted to collect both?

The policy should be re-written indicating that an employee need exhaust all vacation time except when on FML for himself or herself due to disability.

If the employer is going to enforce the policy the way it is currently written, then the employee should only allowed to take home 100% of pay total. Check out the STD carrier's policy and I'm fairly certain there's going to be a blurb in there making sure the employee does not get more than 100% of pay while on disability. If the employee's salary is continued above and beyond the differential, there's going to be an offset.