Another Company Shutdown Question - Florida

AnaFL

I have another situation re an employee who requested disability/FMLA leave for a permanent disability on the day before the meeting we had re our shutdown. Of course his approval was dependent upon medical certification from the doctor, and he used vacation time for the first week, but I did receive the medical certification forms today from his doctor. Our company policy is that if an employee becomes disabled from an illness/injury not related to the job, the company will provide 6 months of short term disability pay, running concurrently with FMLA if applicable, and at the end of the 6 months, if they cannot return, as is the case here, they would get terminated at that point. So he was aware of all this, and it was approved on a Friday. On the following Monday, our GM called a company-wide meeting announcing the shutdown of our plant in approximately 2-3 months. Everyone is still employed and permantent layoffs will only start happening after 60 days.

Our question now is how do we deal with this individual's case? Our corporate office in WI is not closing, so our company is still open technically, just this division is closing. So should we just pay him his 6 mo disability and then treat him as we would have were we still open, or should we give him the permanent layoff letter, and all the benefits (severance etc.) that he would have got, had he not gone out on disability at all? Doesn't FMLA state that an employee are entitled to equivalent benefits, pay and other terms/conditions of employment with regards to restoration? Yet in this case we are first of all not going to be here to be able to offer him his job back, and secondly he has requested this disability leave knowing he can never return due to his permanent disability status, and we knew this.

Any input would be greatly appreciated!

Confused, from Florida!

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 04-30-02 AT 02:01PM (CST)[/font][p]The employee does NOT gain any additional right as a result of FMLA leave than he would have had if he had stayed at work. So, in answer to your question, you should do the latter IF the employee would be laid off based upon whatever "non-discriminatory" criteria you are using (but don't make it the fact that he was on FMLA leave). Just document your criteria and how you implemented the lay off and be prepared, if necessary, to explain it to DOL if the employee claims he was laid off for having gone on FMLA leave.

System

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James Sokolowski
Senior Editor
M. Lee Smith Publishers