Does My Employer Have to Give Me My Position Back After Being on Disability?

by Barbara Aufiero, Demand Media
    Getting sick could cost you your job.

    Getting sick could cost you your job.

    Illness and injury can keep you out of work for a long time. Even if you have disability insurance, it can take a week or two to kick in. Plus, you might have to use all your sick days first. On top of that, you only get paid a percentage of your salary while on disability -- generally 40 to 65 percent. Worst of all, you might not have a job once you recover.

    Length of Disability

    Short-term disability policies last from three to six months, at which point long-term disability kicks in. Long-term disability generally lasts two to five years, or up to the age of 65. However, being on short-term disability or long-term disability does not necessarily protect you from losing your job. The good news is that you can continue to receive disability pay even after you're terminated, as long as you went on disability while you were still employed.

    Family and Medical Leave Act

    The only bona fide job protection you have under Federal law when you're out of work is provided by the Family Medical Leave Act, or FMLA. If you worked at least a year for a company that has over 50 employees within a 75 mile radius -- and you worked a minimum of 1,250 hours in the past 12 months -- you're covered under the FMLA, which gives you up to 12 unpaid weeks off in a 12-month period for serious medical conditions and certain family obligations. Your medical benefits stay intact while on FMLA leave. Best of all, you are entitled to go back to your job or to a similar job with the same salary and benefits, according to the United States Department of Labor.

    Key Employees

    If you worked your way up the corporate ladder and are among the highest paid 10 percent of all company employees, your absence would probably have a major negative impact on the company. As this would necessitate your employer to fill your position as soon as possible, in this case, he does not have to hold your job for you while you are out on FMLA leave. However, he should notify you of this ahead of time, giving you a reasonable opportunity to return to work before giving your position to someone else.

    Exceptions

    For your boss to hold your position, the position must still exist when you are ready to return to work. In other words, if your company downsizes while you are out on FMLA leave and your position is eliminated, the company can lay you off. Also, if during your leave, your boss discovers that you have engaged in criminal behavior, such as embezzling from the company, he can let you go.

    Company Policies

    If your 12 weeks of FMLA leave are up and you're still unable to return to work, your boss is no longer legally obligated to give you a job once you return. If you're lucky, your company may have its own policy to hold your job for a longer period of time -- like up to six months. If this information is not in your employee handbook, ask someone in human resources about your company's leave policy.

    About the Author

    Barbara Aufiero has been writing health-related articles since 2008, specializing in mental health and health insurance. Aufiero resides in New York and holds a Master of Arts in psychology.

    Photo Credits

    • Jupiterimages/Polka Dot/Getty Images