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Can I Apply for Disability While on FMLA?

Written by
Jackie Jakab, Disability Attorney
Jackie Jakab
Lead Attorney
February 23, 2023  ·  4 min read

If you’re applying for disability benefits, you’ve probably heard that it’s a long process. To hedge your bets — protecting your job in case you need it later — you might be thinking about taking leave under the Family Medical and Leave Act (FMLA).

This act lets you take job-protected leave for specific medical reasons. In other words, your company can’t fire you while you’re away. If you’re eligible for disability, you’re probably eligible for FMLA. As a result, it might seem like a no-brainer to take FMLA leave, safeguarding your job while you figure out your disability benefits.

And yes, technically, you can apply for Social Security disability while on FMLA. But you should know that taking FMLA may make it harder to be approved for benefits.

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Can I get disability benefits while on FMLA?

We’d love to give you a yes or no. But in reality, the answer is maybe.

The whole purpose of FMLA is to protect your job. So by taking it, you’re indicating to the Social Security Administration (SSA) that you plan to return to work.

And disability benefits are exclusively for people who are unable to work due to their condition.

If you take FMLA, it will show on your disability application. When the SSA or judge sees that, they’ll assume that you plan to return to work once you feel better.

It’s much easier to get disability benefits when you can show the government that there is no likelihood of you recovering, at least for the foreseeable future. And since FMLA only gives you 12 workweeks of job protection in any given year, it indicates that you plan to be back at work in the near-ish future.

It’s pretty similar to the roadblock you’ll run into if you try to get unemployment and disability at the same time. Ultimately, the SSA needs you to choose a lane. Can you work, or can’t you?

When you can take FMLA and get disability benefits

All of that said, you can technically take FMLA and get disability. To do so, though, you need to be in a position where you can prove that your condition is severe and will keep you from working.

The good news is that the conditions that would qualify you for disability will generally entitle you to FMLA, too.

The bad news is that you’ll need to be careful with your timing. Generally, it’s best to take FMLA and disability consecutively. Go on leave for the 12 job-protected weeks the act gives you. If, during that period, you realize you can’t return to work, leave your job and then apply for disability.

Because you will have left your job, your disability case will more clearly show that you’re unable to return to work.

All of this really only makes sense if you work for an employer or in a state where FMLA leave comes with some pay. Federally, FMLA only requires that your employer protects your job while you’re out — not that they compensate you in any way. So before you assume that you need FMLA, find out if you’ll get any financial support while you’re not working If not, skip it. Doing so will make your disability case easier.

How to improve your chances of getting disability on FMLA

If you’re committed to taking leave under the FMLA and you know you’ll need disability after, it’s time to start building a relationship with a doctor.

The SSA needs medical evidence that your condition keeps you from working; they won’t just take your word for it. Some of your best allies here are your doctors. See your primary care physician and any necessary specialists. Talk with them about what you’re feeling and make sure it gets into their file on you.

Don’t wait on these appointments, either. A strong disability case will show at least a few months of doctor’s appointments and treatments. The more medical records you have speaking to your condition, the more evidence you can show the SSA to convince them you should get disability benefits.

Pro tip: Ask your doctor for a medical source statement (MSS). In this statement, your doctor should confirm that your condition will keep you out of work for at least a year (the medical requirement to get benefits). This statement can be especially helpful if you’re under 50 or trying to get disability for a mental health condition because the SSA is stricter in both of those instances.

Beyond that, to boost your chances of getting disability while on FMLA leave, make sure you fill out the application well. This single step can make or break your case.

Where to get help with a disability application

Filling out the application properly — and adding as much relevant, supporting evidence as you can — matters for any person who wants disability. But if you’re applying for disability while you’re taking FMLA leave, it’s extra important for you to do this right.

You’re not on your own here. A lawyer who specializes in disability can guide you through the process. Not only can they help you actually fill out the application, but they can also collect additional pieces that can give you the best chance of success, like a function report and a work history report. In fact, people who work with a lawyer are three times more likely to win their disability case.

You should know that not every lawyer will take your case. Some specifically turn down disability applications when the person is on FMLA leave because it makes their case harder to win.

But don’t worry. We can help here. Take our 2-minute disability benefits quiz to double-check that you qualify for disability. From there, we connect you with an experienced disability lawyer who’s willing to work with someone on FMLA leave. The best part? You don’t pay until you win.

What to do for income while applying for benefits

Maybe you were planning to lean on FMLA leave for income and this article has put you off it. You still have bills to pay and groceries to buy, though. Fortunately, there are resources that can help you keep yourself fed and housed while you apply for disability.

Unfortunately, as far as an income stream goes, your options are fairly limited. If you get even a side hustle job going, it shows the SSA that you can work, hurting your disability case. If you get workers’ comp or unemployment, you show intent to return to work, again hurting your case.

Ultimately, your best bet is to hang tight and only take FMLA if it comes with pay and you really need it. In the meantime, tap into resources to help keep your bills paid and work with a disability lawyer to get your case moving forward as quickly as possible.

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Jackie Jakab, Disability Attorney

Jackie Jakab

Lead Attorney

Jackie Jakab is Atticus’s Legal Director. She’s a licensed attorney, a graduate of the University of Chicago Law School, and has counseled thousands of people seeking disability benefits.
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