Terminating an Employee Out on STD in NYS
efeldman
146 Posts
We have an employee who has been out on STD for 6 weeks. Her doctor has put her out for a total of 23 weeks, and we cannot afford to have her out that long.
We are a small, 38-person company, and would like to replace her as her role is important to our business operations and she is a department of one.
There are no FMLA considerations.
What do I need to do in order to terminate her?
We are a small, 38-person company, and would like to replace her as her role is important to our business operations and she is a department of one.
There are no FMLA considerations.
What do I need to do in order to terminate her?
Comments
[quote user="efeldman"]We have an employee who has been out on STD for 6 weeks. Her doctor has put her out for a total of 23 weeks, and we cannot afford to have her out that long.
We are a small, 38-person company, and would like to replace her as her role is important to our business operations and she is a department of one.
There are no FMLA considerations.
What do I need to do in order to terminate her?[/quote]
(1) ADA consideration - is leave a reasonable accomodation?
(2) Timing consideration - STD does not afford any job protection that I know of, so you could undertake any disciplinary action you would have taken anyway (e.g., terminate for poor attendance as long as you apply the same requirements you would to anybody else). The problem is that the timing of the disciplinary action makes it look like a possible cover for any other illegitimate purpose the person wants to claim (including, e.g., ADA retaliation). The underlying rule is not to be mean to sick people.
(3) State law consideration - is there any state law that would provide protection either because of the nature of the leave or the illness that gave rise to it?
Since you are not covered by FMLA, you can terminate the employee. The FMLA was designed to apply only to employers with 50+ employees to accommodate those small employers who do not have the resources and would find it more difficult to replace the employee.
The only way discharging an employee on disability would be illegal is if the employee was able to prove that they were discriminated against for FILING a claim for disability benefits.
The only NYS-specific disability law is that employers must provide disability benefits coverage to all employees (in terms of the employer purchasing disability insurance through a provider).
[quote user="sungerle"] The only way discharging an employee on disability would be illegal is if the employee was able to prove that they were discriminated against for FILING a claim for disability benefits.[/quote]
Strictly speaking, that is not correct. If the employee is discharged on any illegally discriminatory basis, it is illegal whether the employee can prove it or not. It's also important to keep in mind that "prove" in civil court generally means "convince a jury that it was more likely than not." The standard is not particularly high. In the employment law context, every juror has had a job they didn't like and a boss who was mean to them, so the company starts with two strikes against it. Moreover, the saying "juries do not believe in coincidences" is older than dirt. Bad timing never looks good. So, in practice, it's not that the employee has to "prove" that they were discriminated against for filing a claim. In practice, it's the employer who has to show that everything it did was pure as the driven snow and the employee was so terribly in need of termination that the facts overcome the bad timing so the jury will even consider the employer's perspectice. There are good reasons for the common practice of settling employment law cases. In fact, many types of discrimination suits use a burden shifting model where, after the employee makes an allegation of discrimination that survives the employer's motion for summary judgment, it becomes the employer's burden to show that the cause of terminatin was not discriminatory.
People simplify the predictability of employment law outcomes at their own peril.