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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7014
Experience:  Significant experience in all areas of employment law.
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I am currently on intermittent FMLA to care for my father with

Customer Question

I am currently on intermittent FMLA to care for my father with a terminal illness. I work as a nurse in the Psychiatric ER and having a difficult time with the stress level and fast paced atmosphere. Juggling full time work and caring for my dying father causes me to lose focus and at time breakdown. Would I be able to file short term disability at this time and what would I need to do from a medical perspective (i.e Doctors note)
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 11 months ago.
Good evening and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

I am so sorry to hear about the health of your father. Your inquiry raises an interesting question. Generally, there is nothing in conflict about taking FMLA leave and collecting SDI at the same time. However, most individuals using FMLA are using it for their own health, not for the health of a family member. Thus, the underlying condition prompting use of both programs is the same--the employee's health.

In your case, however, it is your father's health that is prompting your use of FMLA and your own health which is prompting SDI. This poses a conflict in that SDI is intended for those individuals suffering a wage loss as a result of their disability. By electing FMLA to care for your father, you are essentially certifying that you are unable to work because you need to spend your time providing care. To collect disability during that same time, you are certifying that you are suffering a wage loss as a result of your physical incapacity.

As I hope you can see, both of these things cannot be true at the same time--either you need time off work to care for your father (precluding you from collecting diablity because you are not suffering a wage loss), or you are suffering a wage loss and therefore could be working but for your disability, indicating that the FMLA is unecessary.

While there is a chance that the EDD wouldn't catch on to the inconsistent statements you'd need to provide to benefit under both programs simultaneously, if they do you run the risk of disqualification for SDI, plus a demand for repayment of the benefits received and potential penalties. That is not a risk I could possibly recommend anyone to assume.

I wish that I could provide you with more favorable news, but to mislead you with regard to your question could potentially spell disastrous consequences. I trust you will appreciate my candor.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7014
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Expert:  Patrick, Esq. replied 11 months ago.
Janet,

Thank you for your positive rating. In reading over my answer it just occurred to me that a way around this conflict would be to refile your FMLA leave as leave for your own health condition. That way there is nothing contradictory about being on FMLA and SDI, since both are for reasons relating to your personal health.

Of course, the standard for FMLA eligibility and SDI are different, so there is no guarantee you will be approved for both (FMLA requires showing a "serious health condition"), but if you can get your FMLA claim reclassified, there should be no problem collecting SDI at the same time.

Please let me know if you would like to discuss this further.

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