Denied W/C benefits now...

lnelson

I have an 4 month ee who claimed the job is too stressfull. We followed W/C procedures and it was determined to be health issue not related to work. Now ee is filing SDI for unknown time, do we need to hold his position and if not would you term and offer COBRA benefits.
How would you proceed?

POPEYE

I know you don't want to hear this but, "What does your policy say?" I can't speak for what the law is in Arnold's state, but according to our policy, if an EE does not qualify for FML, has exhausted all personal leave time, regardless of WC or STD, we would have the right to terminate.

Gillian3

Nothing different here. The employee has no expectations of anything other than what policy states or what might be consistently done with others in similar circumstances.

Whatever

I am reading in your post that you would have held the position under w/c. I would follow our policy which treats leaves for w/c and std the same.

lnelson

Follow up on this situation.
The ee provided Dr. note stating he will be off work from 1/26/05 to 2/25/05. We decided to put him on a leave of absence. In the letter we stated that he was to return by 2/28/05 with full release from doctor and that this in no way guarantees his position with the company. It was very specific.

Now I received another Dr. note stating he needs another month to March 25. He is requesting to be put on FMLA but he does not qualify. I do not want to extend the leave of absence and we are in need of a replacement currently we are subing out this position in order to keep up with demands. Would us offering the initial leave and continuing his benefits with exception of accruing vacation time be enough accommodation and would this condition "stress" be considered under ADA.

Any thoughts on this will be very helpful.

Lisa

Don D

I wouldn't make the ADA leap. You accommodated him while you were not required by law to do so, which is fine. You have no further obligation to continue that accommodation. But, please don't write him saying that 'unless you provide evidence of being covered by the ADA'.....Because then the next note from the doctor will do that.

lnelson

I am prepared to issue a letter to him stating we are terminating his employment due to business necessity and that he can re-apply for any available positions with us in the future. It will also state his ineligiblity for FMLA.

I agree I would not mention anything about ADA but I am second guessing myself so I need back up from my peers. I am going to have to confer with the higher ups who may want to accommodate further, which would be ok but I feel ee is extending due to his medical benefits and he has stated to his supervisor and me he did not want to be put back in the position he held and wanted to be placed in another dept. We have not had any openings in other areas and need someone in his position desparately.

Gillian3

You may be in a pickle and a call to an attorney might be worthwhile. The ADA is irrelevant in Ca., the Fair Employment and Housing Act is, and it is stricter than the ADA - the reason that the ADA is irrelevant. To be covered under the ADA, someone has to have a disability that has an illness which substantially limits a life activity. The work substantially doesn't appear in FEHA. This person probably wouldn't be covered by ADA, and depending on the situation, may or may not under FEHA - thus the call to the attorney. In my opinion, if the "stress" is a one time event, it wouldn't qualify, but if there is a history of short term events, it may be covered under FEHA.

lnelson

Gillian -
We have talked to an attorney who is stating that we can terminate now but there would be more risk for a wrongful termination claim. He is recommending extending the leave and offering the ee COBRA benefits.
My question is that this is the first time we have utilized a LOA for this long a period are we then obligated to do the same for all other ees? Also, since we have already offered the LOA in lieu of terming doesn't that go with an accommodation to try and retain this ee and now with the new information we can no longer continue for business reasons to not have someone in his position.

Don D

It sounds to me like upper management is overriding both your advice and sound HR practice. So the best thing to do might be simply to throw up your hands and tell them, "I'll do whatever you want. Just tell me what you want." I sense that your stress level is getting as high as the guy riding the program.

lnelson

Don -
You're right do you think I can file a W/C claim for Stress due to indecisiveness.

I think no matter which way we go extend with COBRA or term now we would be ok. You never know what someone will do but I believe we have done all we can without setting to high a precedent and we REALLY need someone in the position.

Thanks for the responses, please keep them coming in case there is something I am missing.

Gillian3

Yes, the attorney response is stupid (is that the right word?). Either one is terminated or not and an extension on the LOA is not. You are also correct in thinking that providing a LOA is an accomodation so you would be accomodating without even figuring out if it is covered by FEHA, and if you did find out it is covered, you would already have a history of providing accomodation, so why not more extensions. Don's advice is good, give your opinion and options, then go with what management wants to do. If you are worried it will come back to bite you somehow, document what you said and who made the decision, no matter what it is.

lnelson

OK here is the final word on this:
Attorney and higher up have agreed to extend the LOA thru March 25th again not guaranteeing the positon with the company and Terming the company portion of benefits effective 2/28/05 and offering COBRA to the ee. (This seems like a term w/ strings.)

The attorney feels that by extending the LOA less likely to have a FEHA claim due to reasonable accomodation. My question is how long of an LOA is reasonable accomodation?

What would be the qualifying event for COBRA?
Reduction of hours or Termination.
No other reason comes close.

Gillian3

There isn't any definition to how reasonable a LOA can be. It will string out as long as the attorney et.al. decide to string it out. Hopefully it will be short. COBRA qualification is whenever there is a change which causes the employee to lose insurance.

pork1

It reads to me as "the physician has given you ample justification to call it a medical disqualification" and terminate. In your letter to the ee insure that you write that upon medical formal release to active full time work that your company will consider his/her application for hire at that time. Send COBRA information and any other benefit notification to which he/she may need additional information on which to act.

PORK