How do they interact?

LindaS

We have a short-term disability program that allows for up to 26 weeks of payment in a calendar year but the FMLA only allows for 12 weeks of job protection. Once an employee uses all their FMLA, how then does the STD payment interact? Are we, as an employer, required to maintain the employees seniority and other benefits for the 26 weeks or do we terminate and then the employee would be eligible to continue the STD through a COBRA situation?

SMace

It depends on how your STD is written. Our ee's are eligible for the full 13 weeks of STD if they become disabled while "employed". If they are terminated, they continue to draw STD if they stay disabled. Once an ee is terminated we would not continue seniority and other benefits. I look at it as a way of easing the ee back into the workforce. They are termed, but at least they have some income coming in until they can get back on their feet.

mushroomHR

Here's what we do in our company. We run our STD and FML concurrently. We keep our employees on the payroll for the entire 26 weeks with full benefits. They are responsible for their healthcare premium contributions during this time. At the end of their 26 weeks if they cannot return to work they are taken off the payroll and offered COBRA.

What I would like to do, if this is permissible, (and perhaps someone could tell me if it is) I would terminate the employee at the end of their 12 weeks FML and offer them COBRA. I would continue their STD and if they get to a point where they are fit to return to work they could come back if we had a position open for them. I would keep their seniority and reinstate their benefits upon their return if it were before the 26 weeks were up.

I've had this scenario twice this month where an employee has exhausted their FML but are still out on STD. I look forward to other responses to LindaS's and my questions.

KP68

The issue that I have come across, and have received legal advice on this, is to be certain you are treating all employees on any type of medical leave the same in terms of benefits. This means that you should do the same for someone on FMLA, Workers Comp and/or disability. In light of this information, we have decided that as a company, we would continue an employees benefits for a max of 6 months of medical leave. We run FMLA concurrent with workers comp and disability, and once FMLA is up and the employee continues to remain on disability, we continue their benefits and do not terminate for six months (as long as the claim continues to be approved as a qualified disability for the 26 week duration). If the leave becomes unpaid at any point, we invoice the employee for their portion of the insurance premium, and then offer COBRA and terminate at the end of the six months.

Michael Modl WI

>We have a short-term disability program that
>allows for up to 26 weeks of payment in a
>calendar year but the FMLA only allows for 12
>weeks of job protection. Once an employee uses
>all their FMLA, how then does the STD payment
>interact? Are we, as an employer, required to
>maintain the employees seniority and other
>benefits for the 26 weeks or do we terminate and
>then the employee would be eligible to continue
>the STD through a COBRA situation?

Linda:

Your question is potentially complicated. Look first to your plan to see what rights the plan documents provide employees. Next, if the injury that resulted in the employee being on STD leave is work-related, there will be worker's comp implications. Next, if the person's medical condition is a disability, as that term is defined either by state or federal law, you will have certain accommodation obligations which include allowing an individual to take leave. Remember that a temporary condition is not a disability, even under the broad definition used in the Wisconsin FairEmployment Act. Finally, you will want to make sure you are treating the employee consistently with how you have treated similarly situated employees in the past.

Mike

Michael Modl
Editor, Wisconsin Employment Law Letter
Axley Brynelson, LLP

dbutton111

>We have a short-term disability program that
>allows for up to 26 weeks of payment in a
>calendar year but the FMLA only allows for 12
>weeks of job protection. Once an employee uses
>all their FMLA, how then does the STD payment
>interact?

STD payments are not dependent on FMLA at all. I assume the person was an active, at work employee, and meeting all STD and FMLA eligibility rules. You can terminate someone after their FMLA runs for the full 480 hours. It does NOT affect their STD payments at all. STD is based on the employee's eligibility AT THE TIME OF DISABILITY - not 12 weeks later.

>Are we, as an employer, required to
>maintain the employees seniority and other
>benefits for the 26 weeks or do we terminate

You can terminate both employment and benefits once FMLA runs out. Benefits in this case means health insurance, life insurance, etc. It also means STD but only for FUTURE claims. It will not impact the current STD claim they are being paid under.

>then the employee would be eligible to continue
>the STD through a COBRA situation?

STD is not COBRA-able. Only health, dental, vision. Some carriers/plans allow you to continue STD coverage after termination of employment. Again, this DOES NOT impact the STD payments an employee is currently receiving, the coverage they could continue is only for future claims.