Human Resource Blog

This depends entirely upon which state you are in. Different states have different laws regarding a terminated employees final paycheck. Federal law only requires that employees be paid in full on the next regular payday. And that is all that is required in many states, as well. Some states require that employees be paid sooner. A few states require that employees who are fired be paid immediately, or within 72 hours, or within 3 business days.

Please post another question mentioning your state for a complete answer.

Yes, you can probably terminate this employee for excessive absenteeism. The important thing to remember here is that Short Term Disability and FMLA are two entirely separate things. Short Term Disability or STD provides benefits to partially replace the income an employee loses when he or she is unable to work. FMLA is unpaid, government mandated leave that protects an employees job. STD benefits can run for 13 weeks, 26 weeks or even 52 weeks. FMLA is always limited to 12 weeks.

Under FMLA, an employer can legally terminate an employee who has taken more than 12 weeks of unpaid leave. The best way to do this is for the employer to send the employee a certified letter that he will be terminated for exceeding the allowable leave. (Ideally, the employee would have been sent a letter during week 11 of FMLA, letting him know that if he did not return to work on a certain date, he would be terminated.)

There is a system in place to prevent abuse of FMLA by employees. Under FMLA, an employer can require that the employee be examined by a doctor that the employer chooses, to certify that the employee is indeed suffering from a serious health condition that requires time off from work. If the employees doctor and the employers doctor disagree, the employer can even require a third medical opinion from yet another doctor that the employer chooses. However, the second and third medical opinons are at the employers expense.

By permitting an employee to take 15 weeks under FMLA, the employer is setting a dangerous precedent. When a company has a policy or past practice of permitting leave longer than 12 weeks, it must offer the same benefits to other disabled employees. This includes employees on pregnancy disability. This also means that if this employee has taken STD for extended periods in the past, such as 15 months or 18 months and returned to work, the employer probably must allow him to do so now. (An employer can change his or her STD or leave policies. Employees must be notified in writing. However, the notification will not apply to any employee who is already on leave under the old policy. In other words, if you change the company policy now to limit medical leave to the 12 weeks required by FMLA, it will not affect this employees current leave. The employer cannot change the rules in the middle of the game, so to speak.)

There is a possibility that this employee will request additional leave as a reasonable accommodation under the ADA or Americans with Disabilities Act, but as an employer you do not need to worry about that until it happens. If it does occur, post another question and we will address it.