STD

pattyo

Our company does not qualify to comply with FMLA. Would there be a problem with compelling an employee out on short term disability (for maternity leave) to use part of their PTO days while receiving STD benefits? Under our plan they receive 66-2/3% of weekly pay and we would compel them to use 33-1/3% of their PTO benefit during this same period.

Reason being is we are a small to mid-size company and cannot afford to have an employee out for 6 weeks then return to go on vacation for 2 weeks a month later.

Steve McElfresh

Pattyo,

If your policies don't require an employee to coordinate STD and PTO, and if you haven't placed this requirement (or don't intend to place this requirement) on other employees, it would be a singularly bad idea to make such a demand in this instance. Effectively, you are changing the terms and conditions of her work due to her pregnancy. Not a pretty picture under Title VII of the Civil Rights Act.

You say you are concerned that the person will "go" on vacation a month after returning to work. Generally vacation is granted at management's discretion, not an employee's whim. Judicious exercise of management discretion would appear to be a better way to manage this issue.

Note that you only have to have 50 employees to fall under the requirements of the FMLA (of course, the requirements are more complicated than just the 50, but that is the starting point). You describe your company as "small to mid-size." Are you certain you don't qualify?

And, then, you seem to say that she is going to be out only 6 weeks for her pregnancy?! Personally, I suggest you count your blessings for her reslience, rather than looking for ways to rein her in. And then give her some vacation after she's been back a month or so . . .

None of this, of course, is legal advice.

Regards,

Steve

Steve McElfresh, PhD
Principal
HR Futures

408.605.1870

Theresa Gegen TX

That's good advice Steve.

Patty might want to look over the whole policy, to change it so this situation won't arise in the FUTURE. On thing that could be done is just to ask the employee if she would like to use it so she can get full pay when she if off. She might go for it.

Also, I'll bet that your vacation policies allow the employer discretion, based on business needs, about approving vaction. If that is the case, there shouldn't be any worry about her returning and then immediately taking vacation. Because the work is probably stacking up while she is gone, her vaction will probably need to be scheduled for later in the year.

Good Luck!

Pork

Even though your company does not come under the Federal rules under FMLA if you choose to set your company policy to fit the guidlines of the FMLA you can not go wrong. We, likewise, have the opportunity to fore go the rules of a federal law, but we do to be competitive with all the other companies in the area. However, by choosing to follow the federal law we must always follow the federal law for everyone. That means if you choose to require this female employee to take her vacation/sick time in the first two weeks of the absence, then when a male employee breaks his leg and must be out for 6 weeks, you must also require him to take the first two weeks OFF on PTO. HOPE THIS HELPS, PUT YOUR SMALL COMPANY'S POLICY DOWN IN WRITING FOR EVERY ONE TO KNOW HOW YOU HANDLE THESE TYPE CASES. PORK