STD eligibility - active ee or not?

We are drafting FMLA and disability procedures and during the course of our discussions have come up with a question none of us can answer completely. Thought I'd try here:

Employee is having a child and applies for FMLA and STD. BEFORE the employee goes on leave, she decides she is not going to come back to work after she has the child. Technically, she has resigned and our company's term date is always last day worked (can't extend term date via vacation or leave). So this employee is terminated the day BEFORE she has the child. This would disqualify her from receiving STD benefits since she is terminated the day before she needs them.

Similar scenario - except she doesn't resign until several weeks after she is out of work. Company's position is the same - her termination date is her last day worked, the day prior to her qualifying for std benefits.

Only way we have thought of for an employee to get paid STD benefits is to actually return to work after her leave is over as an active employee, then resign (or give notice that she will resign) after she is back at work.

But this doesn't happen often, most often the mother decides either before she has the child or shortly after and never returns to work. We've checked out std spd and policy and it doesn't say much the termination date of employment, only that the employee must be considered an active employee on the date of disability.

What are we missing? Or does all the above make sense and we're just too close to it to see the forest?


  • 4 Comments sorted by Votes Date Added
  • It all makes perfect sense. If you aren't going to return after having the child then there is no need to apply for FMLA or STD. Same as if they were accepting another job.

    What it sounds like is that the "mother" is wanting to collect STD without having to return to work. If this is the senario, check to see if your STD plan has a portability clause or a conversion option. That way they can get the STD and not worry about the term date.

    Other than that, it all sounds really logical to me and a good way to prevent insurance fraud.
  • [font size="1" color="#FF0000"]LAST EDITED ON 03-17-04 AT 01:15PM (CST)[/font][br][br]What if the employee did intend to return to work, but after having the baby realizes she just can't bear to leave the baby with someone else? Very common scenario. I think there is language in the FMLA regs that allows you to require repayment for benefits, but I would imagine they were still eligible for STD until the point they notify you they are not coming back.

    What if someone with another disability elected not to return to work after the disability, or became permanently disabled? Would their term date go back to last day worked and would you consider that insurance fraud? You'll get into trouble if treat women out for pregnancy and childbirth differently than people out for other disabilities.
  • I agree with Carey. If the employee is entitled to FMLA and isn't sure whether or not she will return, she is still entitled to the same benefits as any other situation entitled to STD. Most often, pregnant women espcially, don't know whether or not they will be returning....situations after the birth usually determine that for them. Even though your company uses the last day worked as the termination date, FMLA is treated as though it never happened...thus I would assume in this case the termination date and last day worked could be two separate dates...the last day of the leave unless the employee let's you know earlier that she is unable to return...would be her resignation date. Also, some States like Tennessee, provide 16 weeks of FMLA for pregnancy rather than the normal 12 weeks...NJ's family law reads a little different than some other states.Best wishes, Julis
  • Don't know about Florida, but in NY and some other states, if an ee becomes disabled within a certain period of time after last working (for whatever reason), they are entitled STD. In this case, the ee would certainly get benefits.
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