Term or get more info?

TinaL · January 2004

[font size="1" color="#FF0000"]LAST EDITED ON 01-12-04 AT 01:04PM (CST)[/font][br][br]We have an ee who has exhausted all of her FMLA as of tomorrow. The original certification from the doc indicated that she would always have pain but could return to work without restriction once pain was stabilized through physical therapy.

She has discontinued physical therapy due to not being able to pay the new year's insurance deductible. The physical therapist has written us a letter stating she is not fit for work at this time and she needs further treatment. She also obtained a note from the doc dated 1-7-04 that the diagnosis is severe degenerative disc disease, bone spurs, scoliosis, etc. and "will be unable to return to work for 6 weeks".

Obviously this is something that will not go away in six weeks. This person's job is direct care of adults with mental and physical disabilities and lifting is an essential function. There are no other positions open for which she would qualify even if she could work.

Should we request more info from the doc? If so, what kind of info?

I should add that we do not have std or ltd available.

mwild31 · January 2004

Hi TinaL - before we can offer any advice - we need to know what your policy states. So, what does your policy state? x:-)

TinaL · January 2004

It really doesn't address this particular kind of situation. It does say, "As a condition of restoring an employee whose FMLA leave was occasioned by the ee's own serious health condition, the ee must present a certification from the health care provider that the ee is able to resume work. Restoration to employment will be denied until ___ has received such certification."

AJ SPHR · January 2004

If you have no STD or LTD and she has exhausted all the FMLA time available, then you are under no obligation to continue to hold a job open for the employee, provided there is no specific state law that requires more time than the FMLA provides.

If there is no state law that pre-empts FMLA (or basically adds to the required job-holding time period), then you don't need to ask for more info from the dr because he has basically stated that she cannot rtw for 6 more weeks.

As mwild asks, what is your basic policy concerning medical leaves? What has been your past practice when someone exhausts FMLA leave?

TinaL · January 2004

My only experience in the past was to let the person go, but my boss has a problem with the fact that the doc only states "unable to return to work for six weeks". It implies that there is an end in sight to the problem.

AJ SPHR · January 2004

Whether there is an end in sight or not, if the person has already exhausted the 12-week FMLA leave benefit and there is no additional state or company benefit, then why would you continue to hold the job open? Our STD policy (which runs concurrent with FMLA) provides 26 weeks of job protection. If the employee is not able to return within the 26 time period, even if they have a rtw the following week, we would terminate them at the 26-mark and they would have to apply to LTD carrier to receive LTD benefit from that point on. I wouldn't begin making exceptions here and there on this kind of benefit/policy. Just my humble opinion!

Whirlwind · January 2004

Your instinct that this person's condition doesn't have an end in sight, contrary to your boss's thinking, is probably right. But you can't know for sure and, fortunately, thats beside the point. The point is, you apparently have no policy that compels you to give medical leave beyond the limits of FMLA, and you don't have a past practice of doing so. Given all of that, I think you must terminate the person, or else deal with the likelihood that you WILL be establishing a precedent for the future that you probably won't want to live with.

POPEYE · January 2004

>If you have no STD or LTD and she has exhausted
>all the FMLA time available, then you are under
>no obligation to continue to hold a job open for
>the employee, provided there is no specific
>state law that requires more time than the FMLA
>provides.
>
>
AJ - This is only a fact finding question. This is the second reference made on the forum (I could not find the first) about holding an EEs position while on STD or LTD after they have exhausted FML and state requirements. I have never heard of any "Law or Regulation" so stipulating. Can you can provide me a reference? I would greatly appreciate it. While we do have unpaid Personal Leave to pick-up for 4 weeks after using FMLA entitlement, we have terminated EEs on both STD and LTD so if there is something we have missed I would like to know.

Thanks

AJ SPHR · January 2004

Hi Popeye, to my knowledge there is NO law or regulation that requires you to keep a position open while an employee is on STD or LTD. The only obligation is FMLA-protected leave. It's only our policy that states we will keep a job open (and probably other employers have similar policies). Yes I do know of other employers that terminate while an employee is receiving STD. In fact, our policy states that an employee will be terminated at the end of the STD time period, even if they're eligible for and begin receiving LTD benefit. Hope this helps!

Don D · January 2004

I agree. Unless a policy or practice specifically acknowledges STD or LTD as 'job protection' policies, there is no obligation to consider them such. My view is that they are there to pay partial wages while the person IS on some sort of protected or entitled medical absence, not an entitlement in themselves. I have to agree that nothing I read above indicates the employee's job should be held open beyond the expiration of FMLA.

Term or get more info?

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