"Intermittent" Disability Policy

[Guest SGriffin]

Has anyone heard of "intermittent" disability whereby an employee can use his/her STD benefits over time? For example, our STD policy allows for 90 days - can an employee use one day a week until he/she reaches the 90 day mark rather than take the days concurrently?

[Mary C]

Your STD plan may be incorporating intermittent leave in response to intermittent leave required under FMLA - Family and Medical Leave Act of 1993. The act mandates that companies with 50 or more employees allow up to 12 weeks leave within a 12 month period for either their own serious medical needs or to care for a family member with serious medical needs. The leave does not have to be taken all at one time and the regulation permits it to be taken in increments as needed such as one day a week to receive treatment. Generally, FMLA leave is unpaid. The act only guarantees the amount of time you are entitled to

and that you can have the leave without jeopardizing your job (in most cases), not that the leave be paid.

Since receiving pay for leave is not mandated, you should check the summary plan description of your STD plan to see if it allows payment for intermittent disabilities.

[KIP KRAUS]

I’ve never heard of an intermittent STD plan that allows employees to take a day at a time. Typically an STD plan has a waiting period (1 week) before benefits are even paid unless disability is due to an accident or a person goes into a hospital and then sometimes benefits are paid day one.

The 90-day benefits typically are during a twelve-month period. It could be a calendar year or a 12 consecutive month period beginning with the disability.

Most STD policies require a person to be totally disabled from performing the duties of his/her job before it will pay.

Taking one day at a time for illness is a sick day policy and typically payroll continuation. Even if an insurer would write a day-at-a-time STD policy the premiums would be prohibitive.

[Mary C]

We have a self insured plan that just started intermittent disability pay on advice of our ERISA attorney and employee relations attorney. Our admin assistant was diagnosed with diabetis this summer. She spend 1 wk in the hospital getting her blood sugar under control and being educated on diet, exercise, insulin, etc. That took up her 5 days of 100% paid sick pay. Since her return, she's had a difficult time getting her blood sugar up to normal in the mornings and has missed quite a bit of work. She was granted intermittent FMLA and when she can't get her blood sugar up or needs to attend an education/care class, she gets 1 day of disability pay (66-2/3%) up to 90 days in a rolling 12 month period under our plan.

[KIP KRAUS]

Mary C:

I find it odd that an attorney would advise you to pay people under a self-insured STD plan for intermittent leaves under FMLA. As you know FMLA does not require the employer to pay employees while on FMLA.

A STD plan can be designed in any manner that precludes individual selection and if it does not allow for pay for intermittent leave it should be fine.

Most STD plans do not pay for intermittent leave pay and typically define disability as total inability to perform your job. Even if your plan is totally self-insured, which really is a salaried continuation plan, you should be able to deny intermittent leave pay.

I’d be curious as to why your attorneys advised you to do what you are doing. In my opinion there is nothing discriminatory in denying intermittent leave pay under any sick pay plan.

Even in the STD mandated states, I don't believe intermittent leave pay is required, at least in New York it isn't.