FMLA AND TERMINATION
BetteS
6 Posts
Employee applies for FMLA 12/1/02. Has been diagnosed with terminal cancer. Has applied for Social Security Disability. Here is the problem: The plant where he is employed was sold six months ago with the plan that all employees working at that location would be hired by new company. Scheduled termination date with our company is 12/15/02. New company will probably not hire him. Can we terminate his employment while he is on FMLA? Reason for termination would be so his wife's insurance would then be primary. Pretty cold huh? He probably is looking at some major expense and we are self-insured with high medical expenses. I appreciate any help that anyone can give.
Comments
BUT, you say he is being terminated because his medical bills will be to high. Guess what? The employee will be eligible for COBRA, so you might not realize any savings -- AND, more importantly, it is ILLEGAL to terminate someone because you are worried about the cost of the medical coverage -- it is a violation of ERISA (the big federal law that covers all employee benefit plans).
I suggest you look closely at the company's reasons for termination. If it is because the plant was sold, and all employees are terminated -- OK. But don't come out with statements about how his insurance costs too much if that not the reason for termination.
If that is the reason, I suggest you do the legal thing, and keep the employee employed.
Good Luck!
I only mentioned the medical part so that you would know the whole story.
You do bring up another interesting question....since he is covered under his wife's group plan, is he really eligible for COBRA? I know that she plans to carry as primary once he is declared disabled by Social Security.
Thanks so much for your time and info.
Although the regulation indicates that notice of the FMLA leave is not necessary for the successor to have legal obligations, it may be wise to put the successor on notice so there will be not confusion.
As to the obligations of your company, see 29 CFR Section 825.215(e). The Section, in part, states, "If the employee's original worksite has been closed, the employee is entitled to the same rights as if the employee had not been on leave when the worksite closed. . ." Section 825.216(a) states, moreover, "An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuosly employed during the FMLA leave period. . ."
I hope this helps. I recognize that your management may not want to tell the purchaser of the individual on FMLA leave because they may fear it will complicate the deal. However, I suggest that the purchaser will be more upset if it finds out about this issue before the deal is closed. It really should not be a problem for the purchaser if it intends to hire your employees in any event.
Vance