Get paid while on FMLA without breaking the law

The Family and Medical Leave Act (FMLA) is the federal law that provides employees who are eligible under the law to use up to 12 weeks of job-protected leave credits per year based on the allowable reasons prescribed by law.

While these 12 weeks of leave are unpaid, there are several ways that employees can still get paid while on FMLA leave.

This article will discuss the different paid leave that can be used simultaneously (or separately) while an employee is on FMLA leave. We’ll also discuss here the different steps that employers and HR professionals need to do to ensure compliance under the FMLA and other laws.

Are employers required to pay employees while they are on FMLA leave?

Generally, under the FMLA, employers are not required to pay their employees while they are not an FMLA leave. This is because an FMLA leave is an unpaid leave.

So how do employees get paid while on FMLA? There are ways to still get paid while on FMLA leave. Employees may seek advice on this matter from their employers and HR professionals.

To further guide employers and their HR departments, here are some ways on how to get paid while on FMLA.

How to get paid while on FMLA: employer programs or policies

To get paid while on FMLA leave, employers may have their own employment benefits programs or policies to help employees while they are on FMLA leave. This may include enrolling their employees under a disability benefits plan. This may be operated by the employer itself or through any other third-party insurance providers.

FACT: The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified medical reasons. Find guidance for workers and employer from @WHD_DOL: https://t.co/LezYrQsrLd #FMLA30

— U.S. Department of Labor (@USDOL) March 22, 2023

To get paid while on FMLA leave through the employer disability benefits, the employee needs to meet certain requirements. It will then entirely depend upon the terms and conditions of the disability benefit plan, but generally, disability benefits may be used simultaneously with the FMLA leave.

Paid disability leaves may also be used by the employee so that they will still be paid while on FMLA leave. This works similarly to vacation leave, sick leave, or family leave when used during the FMLA leave.

The downside: these types of employment benefits or policies that help employees get paid while on FMLA leave are not regulated and mandated by federal authorities. As such, even though it is optional, employers and HR leaders may want to propose and implement employer benefit programs or policies to financially help their employees during the FMLA leave or in other situations of financial distress.

How to get paid while on FMLA: use of Other Leaves

Another way to get paid while on FMLA leave is for the employee to use their remaining paid vacation leave, sick leave, or family leave. These may be applied on the entirety or on a portion of the FMLA leave duration.

One condition enabling an employee to use their paid leaves along with their FMLA leave is that they must have earned their paid leave credits and must be able to use that at the time of the FMLA leave. While their employer may advance these leave credits voluntarily for the benefit of its employee, the employee must consent to this arrangement.

When the employee has chosen this option, or when the employer or HR department suggests to the employee to take such option, the concerned employee must then file the usual paperwork for a vacation leave, sick leave, or family leave.

The use of paid leave during the FMLA leave will also follow the company policies regarding paid leave, e.g., submission of a doctor’s note, etc. If the employee has not complied with the company policies regarding paid leave, they may not be paid while on FMLA. However, they may still be able to use the unpaid FMLA leave.

It is worthy to note as an employer or HR leader that the paid leave used during the FMLA leave – or for leave whose reasons are covered by the FMLA – will be FMLA-protected. Thus, the employee is still entitled to all the rights and protections granted under the FMLA, and employers are required to respect these rights and protections.

In addition, employers and HR professionals must familiarize themselves with other state or local laws which may provide better benefits than those under the FMLA. Both laws must be interpreted complementarily, since the application of FMLA is without prejudice to these state or local laws.

When an employee is entitled both under the state law and the FMLA, their employer may charge these leave credits under both laws. But when the employee is qualified only under the state law and not under the FMLA, their leave will only be charged against the entitlements under the state law, which is separate from their FMLA benefits. Getting paid while on FMLA leave or under these state or local laws will also follow.

How to get paid while on FMLA: apply for disability benefits

Disability benefits that are either offered by an employer or by the state may also be used by the employee to still get paid while on FMLA leave. This is usually applicable when the employee suffers from a serious medical condition which prevents them from working for a specific period.

Workers’ Compensation Benefits

Just like an employer disability benefit offered by the state or the employer, workers’ compensation benefits may also be a method for an employee to paid while on FMLA leave. This applies when the employee has contracted a disease or has become disabled due to occupational hazards or accidents while the employee is at work.

The workers’ compensation benefit is a form of an insurance through a third-party insurance provider, where the premiums are paid by employees deducted by their employers. In the US, employers may be required by certain states to provide for a such benefits for their employees. HR professionals are encouraged to be familiar with their respective state laws regarding this benefit.

One thing to note both for employers and employees is that the workers’ compensation benefits and FMLA leave may either run simultaneously or separately, generally upon the choice the employee. In other words, an employee may choose to still get paid while on FMLA leave by also using the workers’ compensation benefits; likewise, an employee may also opt to choose only either of the two.

However, it is prohibited for employers or their HR departments to coerce employees into choosing only one of these options. It is also prohibited to later inform the employee, after they have exhausted either of these leaves, that the workers’ compensation leave would also be their FMLA leave, or the other way around. To prevent such cases from happening, a written prior notice must be sent to the employee, allowing them to decide whether to choose one or both options.

Short-Term Disability Insurance or Temporary Disability Insurance (SDI or TDI)

An additional way for employees to get paid while on FMLA leave is through the state temporary disability benefits or state-mandated disability insurance.

Only a handful of states requires employers to provide disability insurance benefits for their employees:

• California: California Disability Insurance
• Hawaii: Temporary Disability Insurance
• New Jersey: Temporary Disability Insurance
• New York: Disability and Paid Family Leave Benefits
• Rhode Island: Temporary Disability Insurance or Temporary Caregiver Insurance

Each state’s SDI or TDI will differ from each other, such as the method of application, the computation of the amount of the benefits, the period of payment of the benefits, among others.

The SDI or TDI must not be confused with the workers’ compensation benefits. While both are ways to get paid while on FMLA leave, SDI or TDI only applies when the cause of the injury or the disability is outside of the employment, while the workers’ compensation benefits specifically apply to work-related injuries.

Workers from the other states may still be paid while on FMLA leave if their employers have used private short-term disability insurance or company-provided disability benefits.

Social Security Disability Insurance (SSDI)

At the time when the employee has exhausted their FMLA leave, the usual process of having the employee return to work will follow; otherwise, the employer and its HR leaders may talk to the employee about taking further steps. If it’s an option, HR can advise employees to apply for a Social Security Disability Insurance (SSDI).

When an employee’s disability will last for more than one year, they will be eligible under the SSDI. The employee must also meet certain requirements, such as working for a specific period based on the employee’s age and contributing enough Social Security payments on one’s earnings.

Applications for SSDI may be done online or onsite at the local Social Security office. Since approval of SSDI applications may usually take up to three to six months, eligible employees are advised to apply while on FMLA leave to save some time.

While some may confuse SSDI with SDI or TDI – since all of them are ways to get paid while on FMLA leave – SSDI will be advantageous to employees whose disability may last one year or longer.

SDI and TDI, meanwhile, are better options for conditions that may less than a year, such as pregnancies.

Also, when the employee has already benefited under the SDI or TDI, their benefits under the SSDI may be reduced. There is nothing under the law which prohibits one from applying for both at the same time.

How to get paid while on FMLA: other forms of assistance

When any of these options to get paid while on FMLA are not applicable to the employee, or when it’s not sufficient to cover their living and medical expenses, employers and HR professionals may refer their employees to other forms of assistance like government grants, loans, and benefits.

Please note that when advising employees regarding these grants, loans, and benefits, it must be distinguished from “free money”. The government does not really give out free money to individuals per se and offers of “free money” may fall under illegal schemes and scams. It will also be helpful for employers to advise employees to be wary of such scams during their FMLA leave or in any other time of financial distress.

Food Assistance Programs

Although not really a form of payment while on FMLA leave, food assistance programs may still help employees get by when they are financially struggling.

One of these food assistance programs is the Supplemental Nutrition Assistance Program (SNAP). SNAP benefits, also generally known as “foods stamps”, are administered by the respective states to support low-income families.

Each state would have different requirements before a person, or a family, qualifies under the SNAP, such as their income limits. When they qualify for food stamps, credits will be added to their electronic benefit transfer card (also called an EBT card) that they can use to pay when they buy in licensed retail food or grocery stores.

Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)

The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) is a state program specific to low-income women who are either pregnant, breastfeeding, or who have just given birth. The program also applies to infants and children up to 5 years old who are at nutritional risk.

Like the SNAP, certain requirements must be met by the applicant to be eligible under the WIC, such as being below a certain level of income. However, unlike SNAP, WIC’s benefits come in the form of supplemental food supplies, education and counseling, and screening and referrals to health, welfare, and social services.

Applications for both SNAP and WIC will have to be done before the respective state or local SNAP office or WIC office.

Learn more about FMLA leave in our article, which provides an overview of the FMLA including what it covers, how it affects future employment, and how to communicate effectively with employees about FMLA leave.

If you still have questions about how to get paid while on FMLA, ask us in the comments section below.