Human Resource Blog

Oklahoma STD and Termination

	Benefits
Total Compensation Summary Performance Improvement Plan Performance Appraisal and Review Employee Payroll Status/Change Form Employee Change Form

	Termination
Employee Warning Notice Employee Final Warning Notice Employee Resignation Form Exit Interview Questionnaire Separation Checklist

We have optional short term disability insurance that the employee pays for. Can an employee who has received short term disability for 11 weeks go on disability again? And, can an employee who is receiving short term disability benefits be terminated for taking too much time off work?

The answer to your question depends on a few separate conditions.

First, did the employer charge the paid leave to FMLA (Family and Medical Leave Act)? FMLA provides workers with up to 12 weeks of job-protected, unpaid leaver per year. Paid leave can be charged to FMLA if the employee is informed in writing prior to taking the leave.

If FMLA was charged, then the worker has one more week left. If not, then the worker is still eligible for the 12 weeks of FMLA leave. When the worker returns to the job, the employee must give his or her old job back, or one with similar duties, working environment, wages and benefits.

There is another part of the question to answer, however. Short term disability plans vary, not only from company to company, but within company as well. Short term disability insurance is a private insurance, so the compensation depends on what plan was purchased. A number of short-term disability plans provide 13 to 26 weeks of leave. Since the employee has already taken 11 weeks of disability, he or she is still entitled to 2 to 15 more.

If the leave was charged to FMLA (Family and Medical Leave Act) leave, however, the employee only has one more week left. FMLA provides up to 12 weeks of unpaid, job-protected leave every 12 months. Paid leave can be charged to FMLA, too, but only if the employee knows it will be counted as FMLA before taking time off.

If the leave wasn’t counted as FMLA, then the employee is still eligible for 12 weeks of unpaid FMLA leave. Upon returning to work, the company must provide the employee the same job, or one with similar duties, wages, benefits and working conditions.

Employers must apply these policies evenly and fairly. If they have allowed workers to take a certain amount of leave in the past, they must continue to do so. Selectively granting leave could constitute illegal discrimination. JH