FML, LTD, Termination

hrnewby

I have an employee who was out on STD until January 13th, at which time LTD was to take over. I have just been notified by the insurance carrier that his claim for LTD has been denied because he did not submit paperwork (he has not been paid since January), although he can re-file within a certain time period. I have not provided any FML paperwork to him. Any help with options at this time?

SLB

Send the employee the FMLA paperwork, and designate the leave as FMLA qualifying, if true. Ideally, this should have been done at the beginning of the STD leave so that the STD and FMLA leave would run concurrently.

hrnewby

He was not eligible for FMLA at the beginning of his STD in October, 2005. He started working for us in March, 2005. Also, am I right in believiing the 12 month eligilbity requirement is months worked so he worked from March to October and hasn't "worked" since?

SLB

The employee must have been employed for 12 months and worked at least 1,250 hours to be eligible for FMLA, so if he began employment in March 2005, you are correct, this employee is not FMLA eligible.

hrnewby

Thank you for your help. The ins. carrier tells me he has 180 days to re-file. I would like to terminate the ee at this point and offer COBRA. Do you see any problems with this?

SLB

Be careful. Remember you still may have ADA obligations, i.e., to reasonably accommodate, assuming the employee has a disability as defined by ADA. Granting a leave of absence could be a reasonable accommodation.

hrnewby

Management feels they have granted him his leave of absence since he has not been seeing a dr. on a regular basis since January and we continue to pay his medical insurance. He has kept up with his co-pay to us. He has a bad back, by the way. Can I call him back to work, since LTD in no longer a factor? Then, if he can't perform his duties (he is a banker who sits and stands during the day), can we dismiss him, after making any reasonable accomodations, like a new chair, no stairs, etc?. Maybe he really can work and that would solve everything. We have no doctor orders saying he can't work.

Brad Forrister

I just pulled up this reg for another question, and part of it is relevant to yours:


If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' ompensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as ``at least 12 months,'' 52 weeks is deemed to be equal to 12 months.


So if you're continuing to pay his group health, I'd guess that counts as unpaid leave during which benefits are provided, so it counts as part of his eligible period.

However, he may still not have the 1250 hours. March to Oct is probably, what, 26 weeks at most? At 40 hrs/wk, he'd be at 1040.


Brad Forrister
VP/Content
M. Lee Smith Publishers