When returning to work from short term disability or STD, does the employer have to either have a job position available for the employee or another position or can they terminate employment if they claim to not have any open positions?
This sounds like a simple question, but it is not! It would be helpful if there were more details in your question, like the state, the length of the leave and the circumstances, but we will work with what we have.
Short term disability does not offer any job protection — but FMLA does. Many employers and employees use the two terms interchangably, but they are really entirely separate.
Short term disability is a benefit that partially replaces an employees lost income when they cannot work temporarily, for health reasons. Some companies offer short term disability benefits to every worker, that the company pays for. These benefits may be paid directly by the employer, or through an insurance policy. Other employers offer short term disability insurance policies as an option that are paid by employees. Five states (Hawaii, California, New York, New Jersey and Rhode Island) offer short term disability benefits to almost every employee.
On the other hand, there is unpaid FMLA leave. Most employees are entitled to up to 12 weeks of unpaid leave under FMLA, the federal Family and Medical Leave Act. The FMLA law applies only to employers with 50 or more workers within 75 miles. FMLA is job-protected, meaning that the employee must be returned to his or her job. If that is impossible, the employee must be returned to a job with the same salary, benefits and working conditions. Usually, that means the same job. However, this job protection under FMLA does not apply if the employee is absent one day longer than 12 weeks.
For absences longer than a few days, employees generally submit FMLA paperwork at the beginning of the leave. However, technically employees have until 2 days after returning to work (in most cases) to request that the leave be considered FMLA.
Most of the time, an employee who is on short term disability is also on FMLA, at least for the first 12 weeks. Most employers require that the two run concurently. This gives employees the best of both worlds. They receive benefits, but their job is also protected. However, if the employee is on short term disability more than 12 weeks, the FMLA protection ends. At that point, the employee is still collecting benefits, but no longer has a job to return to.
If the employee wants to return to work after a short term disability of more than 12 weeks, the employer can establish their own policy on how to handle the situation. Many employers would simply tell the worker the position has been filled. Others would tell the worker that they can reapply for any open positions.
Lets look at an example. Marcia has a heart attack, and is off work for 15 weeks. Her short term disability insurance pays benefits for up to 26 weeks, so Marcia receives benefits for the entire time. However, Marcias employer is not under any obligation to hold her job for her, after 12 weeks. If Marcia had returned to work after 12 weeks, at the end of her FMLA leave, the employer would have to reinstate her. However, since Marcia has missed more time from work, the employer is under no obligation to rehire her. Once Marcia is healthy, she may qualify for unemployment benefits.
There are some significant exceptions to the no-job-protection rule. If the short term disability is work-related, often the employee must be returned to work, regardless of how long the absence is. Some states have leave laws of their own, that protect a workers job. If the worker has a disability under the EEOC definition, then additional time off may be required as a reasonable accommodation, which would effectively protect the employees job.
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