NON-FMLA leave question
hrjews4jesus
5 Posts
We have an employee, Phil, who is on STD now, and will go to LTD at the end of July. He does not qualify for FMLA. But I'm having trouble finding answers to my questions because almost all the resources address FMLA.
Some background factoids: Our STD plan is self-insured. Our LTD plan is a purchased policy. Phil works in NY and lives in NJ. He works in our Manhattan Branch which has only 11 EEs. Phil is the only person in that particular job.
We have hired a temporary employee, Alex, to cover Phil's job while he is on STD. We hired Alex as a temp through July, and told him that we would re-assess his status at that time, depending on whether Phil would be coming back to his old job or not.
So far, it appears very unlikely that Phil will be able to perform his job with the medical conditions he's got. Assuming the insurance company continues to find him qualified for the benefit ("disabled"), he will be able to collect LTD benefits until he is 65, which will be in December of 2025
One question is: at what point does Phil cease to be our "employee"? Is he considered our employee -- albiet an "inactive employee" -- all the way through until Dec 2025? What if he finds work elsewhere -- would he cease to be our EE at that point? What if that work is only part-time -- how would that affect his employment status with us?
Since Phil is not subject to FMLA, are we obligated under the law to "hold" his job for him at all? How long do we have to "hold" his job for him? In other words, at what point can we tell Phil that we must fill his job with another regular employee, and go ahead and change Alex from temp to regular? (We don't have any other positions that we would be able to offer Phil in lieu of his old position.)
What would happen if, at some point down the road, while he is still collecting LTD benefits -- and after filled his job with another employee (probably Alex) -- Phil recovered to a degree where he could perform his old job, and wanted to come back. This could be a few months after going on LTD, or it could be years down the road. At what point does our obligation to him end? I don't think that we would be "on the hook" thru Dec 2025, but I have no idea when we could consider his job officially open and fillable.
Hope my questions made sense. Thank you in advance for your feedback and advice.
Terri, HR Manager
Comments
Assuming that your organization is covered by the ADA, I would look there first (and then any applicable state disability discrimination law). Determine whether the employee is "disabled" i.e., substanitially limited in one or more major life activities by a mental or physical condition (most likely he is, considering the new amendments to ADA). Then consider reasonable accommodation in the form of additional leave, other changes to nonessential functions, etc. Go through the interactive process, get medical certification, and document it and you will either (1) determine that no reasonable accommodation will allow the employee to return to work, or (2) a reasonable accommodation can be made.
If the answer is (1), and the employee is not covered by any other protective statute, you should be able to terminate with no obligation to rehire.
A friendly hint -- I would not be so specific in ID'ing yourself and the employee(s) you are discussing. This could be perceived as a violation of privacy and yoUr obligations as an HR professional. You may want to change your screen name and edit your entry above to delete all names and other identifying info (i.e., to delete org name, employee name, employee's home state, your name from signature, etc.).
[quote user="hrjews4jesus"]Thank you for the friendly hint. I actually did change their names in the note, so these are not their real names. However, I have not been able to figure out how to change my screen name to remove the name of my organization. Would you be able to tell me how to do that? I tried doing it through "My Account" but I couldn't find anything there.[/quote]
You will need to call customer support and make the request or, potentially, create a new account. Customer support at BLR has always been very helpful, I'm sure they'll do a change for you if it is possible.