Notification of termination while on STD Leave... please advise

JRG517

Hello HR Friends,

I need your help.

Could anyone please direct me to the policy that states that an employee on short- term dissability should or must be advised in writing (via a separation letter) if they’ll be losing their job due to a department lay-off. (In this case there is no other position that the employee can move into)   A nurse in our medical department is against this notification, because if the person is undergoing a severe medical condition this notification could make their situation worse.  The older workers benefits protection act doesn't specifically say that it applies to employees on STD, perhaps I missed something? Please advise. Thank you.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

HR36

There is the WARN Act, if the layoff fits the criteria.

 OWBPA applies to all employees over age 40 (I believe) that are being offered a severance/benefit in exchange for a waiver/release of potential claims. I do not believe it matters whether the employee being terminated is currently on STD or not. Be careful on this, but I do believe that notice is in order.

 

HRforME

Do you as an employer fall under FMLA? Even so, you can still layoff a person on FMLA and/or STD.  I can't think of any business reason to not inform them of the termination as long as you can prove the FMLA was not one of the reasons they were chosen to be laid off.

In most cases under most STD contracts, their benefits will still continue and I would make sure the letter states what they should do to continue the claim and/or file an LTD claim if it moves into that length/benefit.

Many employers would like to make generous/kind decisions, but sometimes it is not in the best interest or best business practice.  Honestly, a nurse in the medical dept is not the one that should be making the decision on an issue like this.  The employer needs to consider the effect of having the employee(s) still on their books from a business standpoint vs the impact on the employee.  Also the employer needs to have a consistent policy... if you are doing it for some but not all, you could possibly get into an issue of discrimination.

JRG517

Thank you very much for the reply.  You are correct about the OWBPA and it does specify employees over age 40.  After further investigation, the medical dept. was suggesting that the notice didn't go out because they were going by an internal policy.  But ultimately, it is HR who makes the determination and proceeds to send out the notice based on the OWBPA policy.

JRG517

HRforMe,<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

Thank you for the concise reply, you are correct it is a business decision and best practice to follow policy (specifically the (OWBPA) Turns out the medical dept. follows their own policies but these don't over ride the policies that HR must follow.  To your point, all of the employees in the affected group were notified, therefore the employee on leave should receive notification as well.

 

JRG517

You are correct about the OWBPA, I have been preparing one recently.  Thank you for taking the time to reply, I really appreciate it.

TXHRGuy

[quote user="HRforME"]Do you as an employer fall under FMLA?[/quote]

...and if so, would the employee on STD qualify for FMLA?

 

That you can layoff an employee out on FMLA leave does not mean that you should.  If you have any FMLA involvement, I recommend you discuss the specifics with counsel before moving forward.