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AlexiaEsq., Managing Attorney
Category: Employment Law
Satisfied Customers: 13565
Experience:  19+ Years of Legal Practice in the Employment law arena.
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Can a person collect social security disability while on FMLA

Resolved Question:

Can a person collect social security disability while on FMLA without jeapordizing the continuation of employee benefits covered under the FMLA?
Submitted: 8 years ago.
Category: Employment Law
Expert:  AlexiaEsq. replied 8 years ago.



Thank you for your question and I look forward to assisting you. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if it means more interactions between us. Also, oftentimes there are future facts that are as yet undetermined in your matter, that can and must leave some areas of information provided by me broad in nature. However, don't hesitate to ask for clarification if needed! At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break. That being said...


You can apply for both, if applicable. First, your SSD will likely not be determine, yay or nay, for months. Then, unless it is fairly clear that you will meet the 12 month durational requirement of inability to work due to disability finding, you will likely be denied. You will then have to file your appeal within 60 days. If Reconsideration appeal is available, the same office that denied you will reconsider its decision and may deny again (statistically speaking, it most likely will). That will take another 2-3 to 4-8 months. Then you will have the opportunity to appeal to the real McCoy, an actual judge. The wait for his review and if needed, a hearing, is now generally between 1 and 3 years. Moreover, if and when you win SSD, the first 5 months are a "waiting period" and you are not entitled to disability benefits at all, so your start date of benefits would likely not coincide with receipt of any health benefits. Even if it did, it would not void SSD case or FMLA case retroactively.


So you see, if your disability doesn't extend beyond the 12 week max of FMLA, SSD will be denied anyway and if you go back to work with no problem, you would likely drop the SSD case to protect your rights later if you do actually become disabled for more than 12 months.


SSD should not void your FMLA, BUT, you by filing SSD, you are stating that you don't believe you will be able to work for at least 12 month, and if you return to work after 12 weeks or less of FMLA, and are able to so work, you will best be served by withdrawing your application for SSD.


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Please note: A times there can be a delay of an hour or more in between my answers because I may be helping other customers or taking a break. In addition, if it is late at night, EST, and we are between postings, I may go get some shut eye, but I'll be back the next day, so never fear.


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