short term disability

seagod

Hi We have an employee who has been out on short term disability. The person was not told at the time that FMLA would run concurrently. The employee has now run out of short term disability and has been denied long term disability. Question. Because FMLA was never mentioned, can we terminate the employee or do we now have to allow them FMLA leave? Incidentally, the person has said it is doubtful they will return to work but has not resigned.

Thank you for your help.

System

Good question. The U.S. Supreme Court is hearing arguments on this topic right now, and we expect a decision later this Spring (see 3rd article below).

A search on the free area of HRhero.com (see the Search box at bottom of the left blue menu) pulled up these articles that should give you both sides of the coin:

Another reason to step up your recordkeeping
[url]http://www.hrhero.com/headlines/102400/fmla.shtml[/url]

Retroactively declaring leave as FMLA-qualifying
[url]http://www.hrhero.com/headlines/030901/fmla.shtml[/url]

U.S. Supreme Court to review FMLA notice requirement
[url]http://www.hrhero.com/headlines/090701/fmla.shtml[/url]

Christy Reeder
Website Managing Editor
[url]www.HRhero.com[/url]

Susan Fentin MA

The Supreme Court of the United STates is going to tell us what the answer to this question is, but in the meantime, the safest route is to notice his FMLA leave now, and keep him as an inactive employee for an additional 12 weeks, unpaid, with the option of returning to work if he is capable of doing so at the end of the twelve weeks. If he is really not coming back to work anyway, you are only losing the 12 weeks of employer contribution to his health care plan. We recommend that you notice FMLA leave for any employee who is out of work longer than three days, and check for their eligibility immediately. You want to start the clock running as soon as possible. If you have any additional questions, I'll be in the office on Monday. You can reach me at (413) 737-4753 or via email at [email]Sfentin@skoler-abbott.com[/email].
Good luck
Susan Fentin
Skoler Abbott & Presser, P.C.
Associate Editor,
Mass Employment Law Letter