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Can an employee out on short term disability be fired?

I am the employer. I provide employer paid short term disability insurance for my full-time employees. A full-time employee has been out on short term disability for several weeks due to a mental illness. The short term disability insurance carrier has approved his disablity until Nov 27. He is supopsed to return to work on Nov 28. We are closed for Thanksgiving holiday Nov 27 & 28. That would mean he should report to work on Dec 1. However, he does not have an appointment with his family doctor until Dec 3 and he does not have a follow-up appointment with his psychiatrist at all at this time. I do not want him to come back without a note from his doctor that says he is okay to retuirn to work. And actually since he has been gone we have discovered that the quality of his work is not up to our standards and we would like to fire him. What can we do?

You want to approach this very carefully to avoid a possible lawsuit.

The short term disability insurance is a separate issue from time off work. The insurance company cannot excuse the employee from work, and cannot tell him when he must return. Only the employer can do that.

You are right to require that the employee submit a doctors note that he is fit for duty, before returning to work. You may well want one from the psychiatrist, that states he is not a danger to himself or other people, as well as able to return to work. Ideally, you should have communicated this to him several weeks ago, so that he could make an appointment early enough to have the doctors note on December 1. You are right not to allow him to return to work, until he has the doctors note.

You do not say if the employee is concurrently on FMLA, and it makes a huge difference. Most employers would require that an employee on short term disability concurrently take FMLA leave. However, the employee needs to be notified in writing, at the beginning of the leave, by the employer, that his time off is being counted as FMLA. If this employee has not used up his 12 weeks of FMLA already, then you must give him the additional time off (Dec. 1 to Dec. 3) under FMLA.

If the employees 12 weeks of FMLA end on Nov. 28, and he does not return to work on Dec. 1, you can terminate him for excessive absenteeism. However, it sounds like this is not the case.

If you have not notified the employee that his current time off is considered FMLA, (and the employer is large enough for FMLA to apply) then by law you must permit him to take an additional 12 weeks of unpaid, job-protected leave, and continue his insurance coverage during that time.

Firing an employee on short term disability or FMLA for performance issues is legal, but problematic. An employer is not permitted to take any negative action against the employee based on the leave. You can certain take action based on objective performance issues, but make sure you have concrete evidence. Suppose John has been on short term disability for 4 weeks. During his absence, an audit of the petty cash shows that John has been stealing. You can certainly terminate John for the shortage. If John was an outside sales person and you discovered during his absence that he had been falsifying his sales reports, and not calling on any clients, that would be a legitimate cause for termination. But if the performance issue is less clear, you want to be careful how you address it.

Neither short term disabilty nor FMLA permits an employee to perform their job poorly, before or after the leave. Employees are expected to be performing at 100% when they are present. If you have learned that Johns performnace was not good before he went on leave, the best way to approach that is probably to write him up. When he returns, give him every opportunity to improve, and if he does not, let him go. This reduces the chance that you will be sued for discrimination or a violation of FMLA.

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190 Responses to “Can an employee out on short term disability be fired?”

  1. Chas Says:

    I was the third employee in my department to be fired within a two month period after going on FMLA leave. It seems to me that any employee who has to use FMLA leave better be very careful as it seems that employers look for reasons to get rid of these employees. Employers can not fire someone for using FMLA, however they can fire them for any other reason once the FMLA has expired.

  2. Caitlin Says:

    Hi Chas! If only employees who used FMLA are being terminated, and not other employees, this may be illegal discrimination. You should contact the U.S. Department of Labor and/or the EEOC to file a complaint. HTH, and thanks for reading the blogs!~ Caitlin

  3. Orlando Says:

    Pushing me to take a shot term disablility?
    I had fibromyalgia and i had some medical restriction. The company forcing me to take a 3 month disability and after that they are going to firing me. Is that lega? I lived in Puerto Rico.

  4. Caitlin Says:

    Hi Orlando! If the company is covered by the ADA, the Americans with Disabilities Act, then this is probably not legal.
    Under ADA, an employer must make reasonable accommodations for an employee with a disability, as long as that employee can perform the main functions of his or her job, with that accommodation. Suppose you load boxes in a warehouse all day. If you need to take every other Wednesday to go to the doctor, or you need to take two extra breaks per day, those would be reasonable accommodations and the employer would be required to grant them.
    However, if you were not able to lift the boxes at all, you would not be able to perform the main functions of the job. In that case, the employer is not required to keep you working, and it would be entirely appropriate for them to suggest you go on short term disability or FMLA. If you cannot return after that point, then it would be reasonable to fire you. Hope this helps, and thanks for reading the blogs!~ Caitlin

    For more about the ADA, got to For more about the FMLA, go to

  5. Sharon Says:

    I have an employee who was written up with a performance plan for poor performance, and then called in sick for two weeks. He now says he is seeking short term disability for stress due to the performance plan. How does one proceed when he returns?

  6. Caitlin Says:

    Hi Sharon! Many people are suprised to learn that being stressed at work confers no special privliges. You should treat this “disability” as you would any other. Require that he complete FMLA paperwork (if it applies to your organization.) Meanwhile, he is still expected to meet the performance criteria while he is at work. HTH, and thanks for reading the blogs!~ Caitlin

  7. Ann Says:

    My husband was out on short term disability. He returned to work and went back out on short term disability on 12/5/2009 which is still pending. He received a certified letter from his employer giving him advisment of his termination (calling it a voluntary resignation) Obviously my husband did not resign as he believed he was on short term dis. The date of termination is effective 12-9-2009. The letter was delivered today 12-17-2009. Is this legal? He was not out on FMLA to my knowledge so should have 12 weeks of job protected unpaid leave in conjunction with Short term. Please advise me of any recourse in this matter. Thanks

  8. Caitlin Says:

    Hi Ann! This is probably legal. Employees on short term disability are usually on FMLA at the same time. Check out the question we answered on 12/17 for more info. HTH, and thanks for reading the blogs!~ Caitlin

  9. Macdonne Says:

    Looking for help getting diability insurance, check out this site, it really helped me

  10. Caitlin Says:

    Thanks for reading, Macdonne!~ Caitlin

  11. tommy Says:

    Just wanted to say I enjoyed the post. You have really put a lot of time into your article and it is just great!

  12. Caitlin Says:

    Check back often, tommy! We post 5 days per week!~ Caitlin

  13. sue Says:

    My husband is out on short term disablity for 4 months. When his FMLA ended, he received a certified letter stating that his position was being eliminated. If he wanted to apply for another position after he recovered he could if he did so within one month of ending the disability. His disability ended today, now his boss wants him to resign. Alternatively they offered him part time 3rd shift at a level below where he was and said that he would be fired for cause after a short while. Does he have to resign or do they have to either give him a job at a simiar level or fire him as a reduction in force — so he can get unemployement

  14. Caitlin Says:

    Hi Sue! Your husband does not have to quit or accept the new job. Hopefully, he still has the certified letter stating that his position has been eliminated.That is all he needs to collect unemployment. Even if the employer denies unemployment, your husband should appeal the decision and use the certified letter as proof that he was laid off.
    Your husband can create a letter for his employer stating that he is ready, willing and able to return to his old job at his pre-FMLA salary, but refuses to accept the part-time 3rd shift position, especially since he has been told he will be fired for cause in a short while. He should not work even one day in the 3rd shift position. If he does so, he has accepted that job and will not qualify for unemployment benefits if he quits. The employer is under no obligation to give your husband a job comparable to the one he had before his 4 months of short term disability.
    But even if your husband does nothing (does not quit and does not show up for the 3rd shift position) the employer has already laid him off and he is entitled to unemployment benefits. HTH, and thanks for reading the blogs!~Caitlin

  15. joyce howard Says:

    i have been out on short term disibility so my job termaited me then when i called them they gave me 30days fmla.but i am still under doctor care.can they still fire me??

  16. Caitlin Says:

    Hi joyce! This is unusual and we would like to know more details. Normally an employee either qualifies for 12 weeeks of FMLA, or does not qualify for FMLA at all. Even if the doctor originally filled out forms only for a 4-week FMLA, you should have been able to fill out additional forms for more time.
    What was the reason the employer gave for terminating you?~ Caitlin

  17. Stephanie Says:

    I am currently out on FMLA and I am also being paid short term disability at 100%. I recently got a job offer and would like to take it. Can I quit my current job even though they have been paying me? Will I have to pay them back?

  18. Caitlin Says:

    Hi Stephanie! When an employee does not return from FMLA, she must repay the employers portion of the group health insurance that was paid while she was on FMLA. Normally this can be avoided if the employee returns, at least for a few days.

    Repayment of disability benefits will depend upon who is paying those benefits. If they are from a short term disability insurance policy, then you are entitled to the benefits either way. If they are being paid directly by the employer, then yes, usually they must be repaid if you do not return after FMLA and are physically able to do so. HTH, and thanks for reading the blogs!~ Caitlin

  19. Stephanie Says:

    Thanks Caitlin! I plan to go back to work on a Monday and then let them know that Friday will be my last day. So in this case I would not have to pay it back? Also, how do I know whether I am being paid from a short term disability policy or whether my employer is paying me directly? Thanks so much for all your help!

  20. Caitlin Says:

    Hi Stephanie! Check the employee handbook. If you return, you should not have to repay insurance premiums under FMLA. However, if the short term disability checks are not coming from an insurance company, they are being paid by your employer. In that case, some employers will have a policy that you must pay the money back if you do not return for a specific period of time. HTH, and thanks for reading the blogs!~ Caitlin

  21. Kim Says:

    If you work for a small company of less than 15 employees and you are not covered by FMLA, then what other protections do you have? If you approach your employer to let them know that you need to take a month off for surgery, could they terminate you? If the company offers STD, could they still terminate you, not allowing you the option of using the STD benefits?

  22. Caitlin Says:

    Hi Kim! Some areas have family leave laws at the state level, but in most states an employee not covered by FMLA who misses several weeks of work for a medical issue can be fired. (If the employee has a permanent disability, her job may be protected under ADA, the Americans with Disabilities Act, in some cases.)

    Many companies offer short term disability benefits under an insurance policy. In that case, the employee would be entitled to STD payments even if she has been fired. If an employer offers short term disability benefits from the company, then the employee handbook should include information on the policy. Five U.S. states offer short term disability benefits for all workers. HTH, and thanks for reading the blogs!~ Caitlin

  23. kara Says:

    I was out on disability on 9-16-2010. my employer was aware of this but not willing to sign forms until she was send a second warning notice from the temp disability dept. she finally signed them and i was on benefits. my doctor order me to be out till 12-5-10 . She has now fired me claimed me that she was not aware that I ws out till 12-5-10 and that I voluntaraly left and has also now denied my unemploymnet benefits. What can I do? and is she allowed to do that even though I have my doctors note.

  24. Caitlin Says:

    Hi kara! Depending upon how large the company is, this may be legal. Your doctor does not determine your employment status, any more than your boss decides when you need surgery. Many employees are entitled to up to 12 weeks of job-protected, unpaid leave under the federal FMLA. An employee who takes FMLA must be returned to his or her job after up to 12 weeks of leave. However, that law only covers employers who have 50 or more workers within 75 miles. An employee of a smaller company can be terminated when she misses too much work, even with a doctors excuse. Short term disability benefits do not protect the employees job. In addition, even an employee covered by FMLA must stay in touch with the employer and keep the employer informed of the employees return date. Simply collecting short term disability benefits does not guarantee the employees job.
    We recommend that you appeal the unemployment decision. The employer terminated you when she knew you were on short term disability and physically unable to work. Now that you are recovered, you should qualify for unemployment. HTH, and thanks for reading the blogs!~Caitlin

  25. Yesenia Says:

    Hi Caitlin,
    I was put on medical leave on 5/3/2010 due to a pregnancy. I filled for FMLA. Then, we I had my baby i suffered PPD so I used all my twelve weeks and 4 weeks of CFRA. Now, Im feeling depressed, overhelm, stressed, anxious at work because my baby is breastfed and he rejects any solids or formula other than breastmilk when he is at the babysitters. At work, Im constantly crying and panicky. I cant think straight, i forget things easily and I feel depressed and stressed out. I feel like a puppet being pulled in all directions and I feel I have no control. If my psychiatrist puts me on short term disability. can I get fired from my job or if I quit can I file for unemployment?

  26. Caitlin Says:

    Hi Yesenia! You have to do what is best for you and your baby.

    It is hard for us to tell for sure, but it sounds like you have used all your FMLA/CFRA job-protected leave. You may qualify for short term disability payments, but your job may not be protected if you take more time off before May 2011.

    It would not be smart to quit your job. If you are put on short term disability, and the employer fires you, when you are recovered enough to work and look for a new job, you will qualify for unemployment. In many cases, if you quit you will not qualify for unemployment benefits. HTH, and thanks for reading the blogs!~ Caitlin

  27. Melanie Says:

    If you are currently receiving STD and your employer terminates you, and you have been contributing to LTD insurance through payroll, can you still file a LTD claim even after being terminated if your disability exceeds the STD timeframe?

  28. Caitlin Says:

    Hi Melanie! Usually long term disability benefits are provided through an insurance policy. Often this policy is linked to the group health insurance. If an employee is terminated, but continues group helath insurance through COBRA or a similar program, then the employee can still file a claim for long term disability benefits. However, if the employee discontinues group health insurance, often the LTD insurance ends as well. HTH, and thanks for reading the blogs!~ Caitlin

  29. Mark Says:

    I have been treated for the past 10+ years for anxiety, panic, and depression disorders. The intensity of symptoms created in the work environment made working insufferable. I have received a couple of “under peforming” assessments. My approved and subsequent extended leaves of absence were unpaid as the company STD policy states that employees with “under performed” ratings are not eligibile for paid STD leave. Is the company legally allowed to differentiate STD benefits based on employee performance assessment?

  30. Caitlin Says:

    Hi Mark! Yes, this is legal. There is no law that the company must provide STD benefits to anyone. If the company does choose to provide them, they set the rules governing them. It is completely legal for an employer to treat low-performing workers differently than high-performing workers.
    There is also no protection under ADA for this situation. As you probably know, an employee with a disability may be entitled to a reasonable accommodation under ADA. However, the employee is always held to the same performance standard as other workers. So the company must legally hold you to the same standard as they would if you did not have a disability. HTH, and thanks for reading the blogs!! Caitlin

  31. Viva Says:

    I have been on a temporary leave for over 12 weeks so my FMLA benefits have ended and my employer has made accomodations under the ADA. I am expected to return to work, even if not recovered, on April 1st. Can they fire me upon my return or can I ask to be transferred to a different department or work part-time?

  32. Caitlin Says:

    Hi Viva! If you are physically unable to do your usual job, you can request part-time work or an assignment to a different job, as a reasonable accommodation under ADA, the Americans with Disabilities Act. You may also be entitled to additional unpaid time off under ADA. Contact JAN, the Job Accommodation Network at, for more info on accommodations. HTH, and thanks for reading the blogs!~ Caitlin

  33. Vonnie Says:

    Hi Caitilin,

    Overwhemlemed, increasingly depressed ..been out of work for several weeks…possibly going into LTD…Hate to return to job…large reason why I am so depressed. Can I apply for UEB? Thank you

  34. Caitlin Says:

    Hi Vonnie! The most important thing is for you to get treatment for your depression. If money is a problem, contact your local department of social services or the United Way about affordable treatment. Also see your family doctor.

    If you are on short term or long term disability, then you will not be awarded unemployment benefits. A person must be physically able to work, and actively looking for a full-time job, in order to collect unemployment benefits.

    Also, a person must be unemployed through no fault of their own to collect unemployment. It sounds like you currently have a job, but you hate it and want to quit. In most cases, an employee who quits a job does not qualify for unemployment. In many cases, an employee who was physically unable to return to work after disability, and was fired, would qualify for unemployment. HTH, and thanks for reading the blogs!~ Caitlin

  35. ava Says:

    Hi I was wondering if I could be fired for being out on temporary disability for depression. My boss is my primary care dr and he told me I could not return to work without getting an evaluation for mental health. I did so and the psychologist recommended I go out on diability for a bit. I received a phone call from the office manager stating that my health insurance would be ending the end of this month and that she wanted me to resign from my job. I told her I would not do that and she said she had no other choice but to fire me cause I was unable to work or afford my insurance and that I should apply for state insurance. This was not my choice to be out of work and it was a forced leave of absence till I was evaluated. Is this legal for them to do to me? I dont under stand how they can do this?

  36. Caitlin Says:

    Hi ava! Yes, in most states the employer can fire you for missing too many days of work — even if you have a good excuse for the absences.

    If the employer has 50 or more workers within 75 miles, you are entitled to 12 weeks of unpaid, job-protected leave under the federal FMLA. However, in most states smaller employers are not required to grant any leave. If you are terminated, you will probably qualify for unemployment benefits. Otherwise, you may want to see your psychologist again and see if you can be released to return to work.

    In some states such as California, you may be entitled to paid or unpaid leave from your job under state law. However, in many states you can be fired. HTH, and thanks for reading the blogs!~ Caitlin

  37. daymon Says:

    Yesterday I was terminated from my job for pleading guilty to a felony. Its not theft, violent or drug related, its habitual Traffic Violastor, driving without my license basically. I live in Indiana. heres the twist. I plead on March 25th. im currently on short term disability, having had surgery last week. is this legal??I will add any further info if requested to clear this uop….they just fired me yesterday..May 26th..two months later and i just started my disability, looks a little fishy to me…

  38. Caitlin Says:

    Hi daymon! If the employer was aware of your felony conviction for the past two months, and they neglected to take action until you filed for short term disability, we agree that this may be illegal retaliation. However, if the employer just became aware of the conviction, or you were recently sentenced, then their action is justified.

    While FMLA does not permit the employee to be fired for taking time off, it does permit the employee to be fired for another reason unrealated to FMLA. HTH, and thanks for reading the blogs!~Caitlin

  39. Jen Says:

    I am pregnant and have been on disability due to complications of my pregnancy since April 9th. My baby is not due until late July and I would like to take all of my short term disability and my paid family leave a total of 6 months (I live in ca) I am not covered by FMLA as I work for a small company. If they do not give me my job back after my short term disability and my paid family leave will I be eligable for unemployment benifits?

  40. Deborah Bosley Says:

    I have worked for the same co. for 31 years, I just turned 58.I might add I have a nimber of dept heads
    all was well. I was given the job of lead Tech amd
    Purchaser 7 years ago. Last year I got a new boss and man what a year this has been first week she was there
    she told me we had 2 emplyoees shad worked with in the past and she was going to get rid of them (They are noe gone) Then she told me she knew I was not going to work forever so she hired her goddaughters as my assisant for me to train. Well it been bumpy but I kept it together then one day when my assisant asked what my boss and I were talking about I said you already know which she did she got all amd my boss had just left so she went to the sude doors and called her,
    this was her normal she made another employee leave by causing issues and calling and crying so I followed her to the door and told her that was part of the problems we were having in the dept. I then went back and emailed the boss about the problem. Oh by the way see took her on a company learning trip to be the super user on acudose machines I did not care I already
    know how to configure and load them. Well everything
    seemed fine when they returned the next week,Wrong I ended up in HR my boss wrote some of the most horrible things about me and my work I was shocked.I told HR I did not agree they gave me 24 hours to add reply which I did and I had dates and documentation. Well after 2 weeks working in the stress.My Dr put me on meds and wrote a note for 2 weeks off which I had 4 weeks time built up. I did not ask for fmla.My boss was so nasty she said she would have to talk to HR at this point I said I need the time off so do what you need to. I also need to tell my assisant has had family problems
    and daughter problems and was allowd all the time she wanted no matter how hard it made on the dept. Well I got a certified letter from HR saying they were putting
    me fmla and outlined all my pto.eib postion wpoldbe held for 12 weeks. Then at the bottom of the letter they told me do to hardship on the dept my postion was replaced. This is within 24 hours. Do I have any recourse against the company or my boss for showing favorites or pushing me out dur to my age. I have never been written up before and have always done the best job I could. But I live ib Florida and I am told workers have no rights to speak of.

  41. Caitlin Says:

    Hi Deborah! Okay, there is good news and bad news.

    The bad news: There is no law in Florida or most other states that prevents favoritism. It is not a good management practice, but it is legal. Many employers would not allow the department head to fire workers and hire her goddaughter, but it appears that your company allows it. (Or maybe HR does not know that your assistant is the goddaughter of the boss?) There is nothing wrong with the supervisor hiring someone and cross-training them to do your job. That is just good management — any employee could become ill or quit.

    More bad news: Two wrongs dont make a right. Unprofessional conduct by your supervisor does not excuse unprofessional conduct on your part. It was completely uncalled for and unnecessary for you to tell the goddaughter that she already knew what your supervisor told you. The whole confrontation by the side door was unprofessional. If you had problems your supervisor was not addressing, you should have tactfully and respectfully discussed it with HR — not become involved in a shouting match.

    It is unusual for stress to be a serious health condition covered by FMLA, except in California. It is normal for an employer to put any employee on FMLA when he or she takes a week or two off for a reason that could be covered by FMLA.

    The good news: FMLA is job-protected, meaning if you can return in 12 weeks or less, you must be returned to your job. When an employer fires you for taking FMLA, that is illegal retaliation. Nor can an employer refuse FMLA because it is an undue hardship.

    You should do 3 things right now.

    1. Send the employer a certified letter stating that you are ready, willing and able to return to your job after FMLA, and that FMLA requires that you be returned.

    2. File a complaint of illegal retaliation under FMLA with the U.S. Department of Labor at You are protected from further retaliation when you file the complaint — but you have little protection if you do not file a complaint.

    3. Frankly, we are not sure that this is age discrimination. But since you believe it is, file a complaint of illegal discrimination based on age with the federal EEOC at

    It is quite possible that immediately after you file the two complaints, you will be given your job back. HTH, and thanks for reading the blogs!~ Caitlin

  42. Lorraine Says:

    Hi Caitlin:

    I had sent you an email about 15 mins, ago.My name is Lorraine.

    I forgot to check the notify me via email.

    I would like for you to email me.

    thank you

  43. JC Says:

    my g/f works for a large company in Texas. She has been on FMLA/STD since March for mental issues and has seen a phsychiatrist weekly during this time. The doctor wants her to be off work until October and has filled out paperwork requesting that and she was planning on going from STD to LTD. Unfortunately the company is terminating her employment now that the FMLA is up. She will not be eligible for LTD b/c she is terminated and going to lose her benefits. Is this legal? With the information provided from the doctor would she be eligible to collect unemployment? There were no performance issues prior to her leave.

  44. Caitlin Says:

    Hi Lorraine! Unfortunately, we cannot respond to questions via private email. If you would like to post another comment, we will address it online. HTH, and thanks for reading the blogs!~Caitlin

  45. Caitlin Says:

    Hi JC! Yes, this is probably legal. Most US companies do not offer any long-term disability benefits. In fact, many Texas companies do not offer any short-term disability benefits. In most states, once the employee has exhausted the 12 weeks of FMLA, he or she can be fired if not able to return to work.

    However, there is hope. Many times a condition that affects someone for more than 5 months is considered a permanent disability under ADA, the Americans with Disabilities Act. By law, the employer must make reasonable accommodations for someone with a disability. Often, additional unpaid time off in excess of FMLA is a reasonable accommodation under ADA. However, your girlfriend needs to send them a letter that specifically states, “I am requesting additional time off as a reasonable accommodation for my disability under ADA.” Unlike FMLA, they do not have to offer her this.

    On the other hand, ADA leave is unpaid.

    If your girlfriend is fired for non-attendance, she might qualify for unemployment benefits. However, in order to collect unemployment, she must be physically able to work, and actively looking for work. If she was physically able to work, she would just go back to her job, right? So she probably would not qualify for unemployment until her doctor releases her to return to work.

    She may qualify for Disability benefits from the Social Security Administration if her condition is permanent or lasts more than 5 months. HTH, and thanks for reading the blogs!~ Caitlin

  46. Lorraine Says:

    Hi Caitlin:

    I just recevied my FMLA paperwork from my employer and have put in a short term claim with Cigna. Cigna is still reviewing my claim.

    My doctor and psychologist has confirmed that I am having a mental breakdown due to my job and my doctor has put me on medication.

    My doctor and psychologist is recommending that I do not return to this job because this is what has put me in this condition. They are very concerned about my well being since I have suicidal thoughts.

    I am 60 years old and concerned about what I am going to do. I have being working for this company for 1 1/2 years and I have realized that this job is making me sick. The work I am doing is the job of 3 people and they continue to overload me with more work.

    Once my short term disability is over my doctors recommend that I do not return because of my condition.

    Would I be able to collect unemployment if I can not find another job?

    What are my options. Everytime I think about this job I go one step backwards.

    I am really scared of what is happening to me.

    Please advise.
    Thank you

  47. KC Says:

    Today, I received an approved FMLA designation form from my employer from 7/13-8/12. In a separate packet a severance packet. STD disability was approved and would run concurrent with FMLA. I under a doctors care. Since my position is being eliminated and the approved FLMA runs thru 8/12 will I qualify to receive STD after 8/12?

  48. Caitlin Says:

    Hi KC! If your employer is paying the STD, normally employers do not pay benefits to ex-employees. If the STD is being paid through an insurance company, you may still qualify for benefits. Once you recover, you should qualify for unemployment.

    If you believe the employer laid you off BECAUSE of your illness or disability, that may be illegal discrimination. If so, file a complaint with the EEOC at HTH, and thanks for reading the blogs!~ Caitlin

  49. Lorraine Says:

    Hi Caitlin:

    My doctor and Psychologist are recommending that I do not return to my job since it made me have a mental breakdown.

    Will I be able to collect unemployment or should I wait for them to terminated me. I know they are probably thinking of letting me go but I am now on FLMA.

    Thanking you in advance

  50. Caitlin Says:

    Hi Lorraine! Even though you do not intend to return to work, you may be better off using all 12 weeks of FMLA before you inform the employer that you cannot return.

    If you inform the employer that you will not be returning, your FMLA and health insurance will end that day. (You may qualify for COBRA, at a higher rate.) If the employer (not an insurance company) is paying short term disability benefits to you, they will also end, because you will no longer be an employee. The employer has the right to let you go immediately when you inform them you will not be able to return.

    Be sure you have documentation from your doctor and psychologist that you are not able to do this job, and keep copies. As soon as you inform the employer that you are not able to return to work, they will let you go — and they can legally do so. FMLA is only for people who may return to work afterwards. If the employer is paying a portion of your health insurance costs, you are better off waiting until the 12 weeks of FMLA are over before informing the employer that you are not able to return to work.

    If you choose not to return to the job, you must repay the company any benefits paid during FMLA. However, if you are not able to return per your doctor, you are not required to repay the benefits.

    Many mental disorders like bipolar and depression are disabilities under the ADA, and you could request additional unpaid time off or another reasonable accommodation. Working only 2 or 3 days per week might be a reasonable accommodation. but reducing your work load 50% without a reduction in hours and pay would not be a reasonable accommodation. However, it sounds like this job is a nightmare and you are better off without it.

    Once you are healthy enough to work again (perhaps a different type of work?) you may be able to collect unemployment, even if it has been only a few weeks since you were let go. If your unemployment is denied, you should appeal that decision. This is not resigning because you are medically unable to do the job anymore. HTH, and thanks for reading the blogs!~ Caitlin

  51. NicoleW Says:

    I am 3 1/2 months pregnant with twins which is considered a high risk pregnancy. I am 100% certain that my Dr. will put me on bed rest during the last two months of my pregnancy due to preeclampsia and other high blood pressure related issues. I am planning to take the 12 week FMLA for maternity leave after my babies are born but if I am put on bedrest before the babies get here, will that cut into my time off from the back end? Will I be able to apply for STD? If so will that cut into my 12 week FMLA time? I have about 12 weeks of sick and vacation time acrued but im not sure where my job will stand and how long they will hold it if I am placed on bedrest before the delivery.

  52. Caitlin Says:

    Hi NicoleW! Realistically, unless you live in a state like California you may very well lose your job if you are put on bed rest. The federal FMLA requires the employer to give you 12 weeks of unpaid leave. However, that is 12 weeks of leave for all reasons combined. So if you take 8 weeks of FMLA before your twins are born, you will have only 4 weeks of FMLA to use after delivery. Since you will not be physically able to return that soon, the employer can lay you off after you miss 12 weeks of work. Once your doctor releases you to return to work, you will probably qualify for unemployment.

    A few employers offer additional unpaid disability leave, but most do not, so short term disability will not protect your job.

    If you have sick leave, the employer must allow you to use it while you are on FMLA. The employer must also permit you to use vacation, but only according to company policy. HTH, and thanks for reading the blog!~ Caitlin

  53. PC Says:

    I am currently on Short term disabilty thru my job and just exhausted my fmla due to being off for 12 weeks. My dr. And therapist is recommending that I should not return to work performing the same job duties to my illness currently out for depression and extreme panic disorder which my job title has brought on. Does my job have to accomodate my dr request or can they legally fire me.I left with no negative marks of performance.

  54. Caitlin Says:

    Hi PC! There is no law that the employer must make accommodations for a short term disability — only for a permanent one. If you cannot return to work after 12 weeks of FMLA, you can be fired for nonattendance — even when you have a doctors excuse.

    Some states like California offer longer leave, but most do not.

    If you have a permanent disability, you may be entitled to additional time off or another accommodation under the ADA, the Americans with Disabilities Act. You will need to specifically use the words “reasonable accommodation under ADA” to request this. Depression can be a disability under ADA, but it is not always a disability. HTH, and thanks for reading the blogs!~ Caitlin

  55. Ray Says:

    I went out on sick leave on 03/11/2011. I went on FM LA for mental issues. My psychiatrist submitted an OK to return to work on 03/30/2011. It was determined that I needed to also see my psychologist, PHD. I started seeing my psychologist several days per week starting on 04/01/2011. The necessary documentation was submitted. During this period my psychiatrist was also making adjustments to my medicines. My employer approved for me to take up to the full 12 weeks of FMLA. The deadline to return would be 06/22/2011. The doctor still did not give me permission to return by that date. I was terminated on 07/27/2011.

    My doctor has since then given the OK to return to work. However, I will have to find another job. Should I be eligible for unemployment benefits? On a side issue, I is was only paid for 9 days of short term disability Should I appeal this?

  56. Caitlin Says:

    Hi Ray!

    Sorry, we are not entirely clear on the sequence of events here. You were released to return to work on 3/30/11, but did not do so?
    FMLA can be either continuous or intermittent. Many, many employees use FMLA intermittently for medical appointments. If you were able to return to work, you should have done so and taken unpaid time off under FMLA for medical appointments. This might mean working partial days when you had medical appointments.

    If you were still unable to return to work, the psychologist treating you or another healthcare provider should have certified your short term disability at that point. It is not clear that this happened.

    If you were terminated because you were unable to return to work after 12 weeks of FMLA, then you would qualify for unemployment. However, if you had been released to return to work, but decided to take additional time off, then those absences may not have been covered under FMLA. In that case, you basically quit your job (by not showing up for work) and would not qualify for unemployment benefits.

    It appears that you are being considered “disabled” for short term disability payments only for the period ending 3/30/11. If you can document that you were unable to return to work afterwards, you should certainly appeal that decision. However, not everyone who is being treated by a psychologist is entitled to short term disability. STD is only for people who are unable to work due to a health problem.

    If we have misunderstood, post more details and we will try to help. HTH, and thanks for reading the blogs! Caitlin

  57. M.R. Says:

    I am currently on Short term disabilty thru my job from 7/14/11 till 9/19/11. Going back this Monday on 9/19/11 due to 2 Carpal Tunnel Surgeries related to my job. I will have restrictions and schedule to continue with Therapy for another 2 weeks. Employer approved that they would have something for me to do light, and that I could come back on Monday. What are my chances getting fired. Reason: Injury at work!! I did informed Short Disability that I would be returning back to work on Monday the 19th. So they agree to pay me thru 9/16/11. Please reply to my email…Thanks

  58. Caitlin Says:

    Hi M.R.! There is little chance that you will be terminated due to a work-related injury,especially since the employer has indicated that they will be able to accommodate you on light duty. Unless there is more to this story than you are telling us, your fears are groundless. It would be interesting to know why you are even thinking that you will be fired. Most employers would make every effort to accommodate you for the two weeks until you can return to full duty. HTH, and thanks for reading the blogs!~ Caitlin

  59. Lorraine Says:

    Hi Caitlin:

    I wrote to you about 1 month ago on my mental breakdown due to work. They gave me 8 weeks pay of short term disability.

    I just received a letter from Cigna stated that the remaining of my short term was denied as well as long term.

    My 12 weeks FMLA is up on Sept. 29th. I am now concerned because my therapist mentioned that I was stressed due to work issues but she also mention that I was still upset about my mothers death 4 years ago.

    I do not know why she even mentioned this to the insurance company.

    When I had my mental breakdown it was all about work. It had nothing to do with my mothers death.

    The therapist wanted to know a little bit about my life and I had mentioned my mother had passed. She also mentioned that she did not think I was ready to go back to work and that I was resolute about returning to work.

    I am concerned if they terminate me that I will not be able to get unemployment because it sounds like this is existing and this is not the case. The job gave me a mental breakdown.

    What do you think I should do? If they deny me my doctor is going to give me a letter stating that I should not return to this type of work because it would cause a set back.

    I am concerned that they will use this ST/LT claim stating this discrepency.

    Thank you

  60. Caitlin Says:

    Hi again Lorraine! There are actually several different issues here, so we will look at them one by one.

    There is no guarantee that you will qualify for short term or long term disability. You can certainly try to collect it, and appeal the decision if it is denied. But insurance companies are notorious for not wanting to pay disability for mental issues.

    Some attorneys specialize in helping clients receive long term disability. However, there is a little bit of a disconnect here. Either you are entitled to long term disability or you are entitled to unemployment — but not both. You cannot be unable to work and able to work at the same time, and only people who are able to work qualify for unemployment benefits. (Only people who are unable to work qualify for long term disability benefits.)

    Your therapist is a healthcare professional and she must answer the insurance companys questions honestly, to the best of her ability, or lose her license. You may want to discuss with her why she brought up your mothers death. Obviously, she disagrees that your mental health issues were caused 100% by your job.

    It is very unusual to have a long term disability due to a mental breakdown except in very, very stressful occupations like Air Traffic Controller, police officer or ER doctor.

    You will not qualify for unemployment unless you have a doctors written statement that you are able to work. If you were discharged for exceeding the allowable leave under FMLA, normally you would qualify for unemployment benefits once you were healthy enough to work.

    Once you have been released by your doctor to return to work, you should qualify for unemployment benefits, assuming you have earned enough in the previous 5 quarters to qualify. You should qualify for unemployment even if you choose to search for a job in a new field.

    It sounds like you are devoting a lot of time and effort trying to figure out how you can work the system to collect long term disability, unemployment or both. There is no guarantee this will be successful. Your time might be better spent either recovering from your illness, or looking for a new job in another field, or both. HTH, and thanks for reading the blogs!~Caitlin

  61. Lorraine Says:

    Hi Caitlin:

    Lorraine again:

    I might have explained it incorrectly. I had short disability for 8 weeks getting 60% of my pay. I did not expect to get long term I understand how it works.

    My therapist has suggested that when I get well I should not return to this job because I could have a relapse. I am doing alot better and have been working on getting better.

    I am not trying to work the system I am just looking out for myself, moving forward with my life. I am concerned I am not a young woman and very scared with what has happened to me.

    I just wanted to know if I do not return after my 12 weeks of FMLA and if they terminated me will I be able to collect unemployment.

    My concern is that it was mentioned about my mother death and this could conflict in the decision for me to collect unemployement.

    Thank you for your time

  62. Caitlin Says:

    Hi Lorriane! Okay, that is good to know.

    Your fears are probably groundless. Many, many people are laid off when they are unable to return to work after 12 weeks of FMLA. If they subsequently are able to work, and are actively looking for a job, they qualify for unemployment at that point. Example: Tom has a heart attack, and spends 14 weeks recovering. Because he is unable to return to work after 12 weeks of FMLA, he is laid off. When Toms doctor releases him to return to return to work after 14 weeks, he will no longer have a job but will quality for unemployment benefits.

    Suppose you suffered from severe depression due to the death of your mother, and had to take 14 weeks off work. Your situation would be the same. If you are unable to return to work after 12 weeks of FMLA, for whatever reason, you would be laid off but qualify for unemployment benefits when you can work.

    Your unemployment case is NOT stronger if job stress contriubuted to your illness. It doesnt really matter. The employer does not need to somehow be at fault, for you to collect unemployment.

    You can expect the employer to fight this unemployment claim, but you should file an appeal and you will probably win. (Many employers fight every unemployment claim.)

    Remember that your therapist is a healthcare provider, just as your doctor is. Your therapist can certify that you have a serious health condition under FMLA, and that you cannot yet return to work. She can also issue a letter stating that you are fit to return to work. (It sounds like your therapist may be inexperienced and have little knowledge of FMLA.)

    Your situation may be a little bit different if your therapist is not willing to certify that you are unable to return to your job when FMLA ends.

    If you are able to return to work after 12 weeks of FMLA, and you simply choose not to, in many cases you would not qualify for unemployment benefits. You will also be required to repay any benefits paid to you during FMLA, including health insurance premiums.

    The average American has 3 major career transitions to different industries, and many people make one of these transitions after the age of 50 or 60. This is a challenging time, but you can overcome the obstacles. HTH, and thanks for reading the blogs!~ Caitlin

  63. Lorraine Says:

    Hi Caitlin:

    Lorraine again:

    I had recieved a letter from HR on my FMLA. After 12 weeks if I do not return to work after my leave options have been exhausted my employer will consider
    that I have abandoned my job and terminate my employement.

    As of today I have not receive a fit for duty from my doctors and I am still in therapy and not yet stabilized per my therapist.

    She has recommended that I do not return to this type of work due to a mental an emotional debilated environment. My therapist has written a letter expressing her concerns.

    I have an appointment with my MD tomorrow and I know after I show him the letter from my therapist he will also not give me a fit for duty.

    I do not know how I should handle this. Should I send
    my employer a letter stating this or wait to hear from them?

    My 12 weeks are up on Sept.29. If they do not hear from me would this be considered abandonment and terminate my employment?

    I am very concerned I do not know what I should do.

    Please advise me on my options.

    Thank you

  64. Caitlin Says:

    Hi Lorraine!

    You are on the right track. The letter you received from your employer is fairly routine. They would send the same letter to someone recovering from a heart attack, or any other employee on FMLA. It is simply informing you of the date you need to return.

    Your plan is an excellent one. You should get letters from both your therapist and your MD that you are unable to return to this job by Sept. 29. (It would be more helpful if the letters did not mention that you are able to do other types of work. That is really irrelevant at this point.)

    You should send copies of the letters to your employer as soon as you have them, and keep a copy for yourself. Let the employer know you will not be able to return by Sept. 29. You do not have to tell them at this point that you will never be able to return to this bype of work.

    Not communicating with your employer only makes the situation worse. It actually would be job abandonment if you did not communicate with the employer. One of the requirements of FMLA is that the employee stay in touch with the employer on a regular basis.

    It is a little unusual that employer is claiming that your failure to return from FMLA will be considered job abandonment. They are bluffing. When an employee is unable to return to work, and has a doctors note to prove it, that is not job abandonment. However, the employer is sending you a clear signal that they intend to fight any unemployment claim you file in the future. This is not a huge deal. As I noted before, many employers routinely fight every unemployment claim. If your unemployment is denied, you should file an appeal. If you have a copy of the letters showing you were unable to return to work on Sept. 29., you should win the appeal.

    You should advise the employer now that you have a doctors appointment on (date) and you will get back to them then. Once you have the two letters in hand, you should advise the employer that you will not be able to return to work by Sept. 29. (It is better to do this in writing, and keep proof of delivery.) At that point, they will terminate you. They may call it job abandonment, but it will not meet the definition of job abandonment used by the unemployment agency, which is your only concern.

    You have two other options. You can return to work until you can find another type of job. (Be aware, however, that if your performance is not 100% from the very first day back, the employer can fire you for poor performance.) Or, you can request an accommodation or a transfer to another job opening under ADA, if you have a permanent disability. Many mental conditions qualify as disabilities. (You must be qualified for the other position, and they must currently have an opening.) It sounds like you want to be rid of this job completely, so neither of those options is attractive.

    Just for future reference, there is no requirement that you share your diagnosis with the employer to qualify for FMLA — and when a mental disorder is involved, we advise against it. A healthcare provider (again, including your therapist) and certify FMLA for a “serious health condition” without specifying the condition. In fact, they can only share the diagnosis with others if you give your permission. In many cases, it is wiser not to do so.

    This is a complex situation, so feel free to post any additional questions you may have. HTH, and thanks for reading the blogs!~ Caitlin

  65. Lorraine Says:

    hi Caitlin:

    This is the response I received from HR.

    What is your opinion?
    Hello Lorraine,

    I am responding to your email regarding your leave of absence that was forwarded to my attention.

    To clarify, as the letter dated 29 July 2011 stated, if you do not return to work after all of your leave options have been exhausted, we will consider you to have abandoned your job and terminate your employment. However, if your disability continues beyond the 12 week period and you are receiving workers’ compensation or Long-Term Disability, your leave will be continued for up to one year from your last day worked, at which time your employment will be terminated.

    Per the letter sent to you dated 24 August 2011, your STD benefits extension through CIGNA was denied. You may choose to appeal the decision through CIGNA. If the final outcome is ruled in favor of an extension of your benefits, you will be eligible to remain on disability, if approved, for up to one year from your last day worked in accordance with the company disability plan. Otherwise, if all of your leave options have been exhausted, and you have not returned to work with a release, your employment will be terminated.

    You will receive further communication regarding your FMLA exhaustion via mail.

    If you have any further questions, please feel free to reach out to me directly.

  66. Caitlin Says:

    Hi Lorraine! You may want to get an attorney who specializes in employment law to help you with this specific issue.

    There are two separate (but related) issues here: Short term disability benefits and continued employment.

    Apparently your short term disability coverage is through CIGNA, an insurance company. They approved your initial STD claim but denied an extension (perhaps because your MD released you to return to work? If we understood a previous post correctly.) You should definitely appeal this decision, and consult an attorney about this. Again, many insurance companies routinely deny every extension, and only consider the claim if the employee appeals. This is a simple way for them to reduce their costs.

    Apparently your employer also offers long term disability benefits, either through the company or through an insurance provider like CIGNA. This is good news — most companies do not offer this benefit. However, apparently you must be on STD through CIGNA to qualify for LTD. If you qualify for LTD, that will protect your job for up to an additional year — a benefit most US employees do not enjoy.

    You also need to determine if the wages and benefits make this job worth fighting for. If this is a well-paying job with a major company, or if the company offers a pension plan, it may be worth fighting for, even if you have to pay an attorney. If it is a low paying job, then it probably is not worth paying an attorney to keep it.

    It may very well be that an attorney could get you an extension of STD, and get you on LTD for a year, which would buy you some time. Even if you never return to this job, you would have a year to think about it.

    There is also the ADA issue. Many mental conditions such as severe depression are considered disabilities under ADA. The employer is required to make reasonable accommodations. Being assigned to a different job is a fairly common accommodation, if you are qualified for that job. Being on LTD for a year would give you the opportunity to explore this option.

    However, you cannot collect unemployment and be on LTD at the same time.

    In terms of FMLA, this letter does not really offer any new information. If you are not approved for LTD and you cannot return to work after 12 weeks of FMLA, you will be terminated. At that point, you may very well qualify for unemployment benefits. However, the employer will try to claim that you were able to return to work and simply preferred not to do so.

    What you should absolutely NOT do is tell the employer now that you never intend to return to your job. If you do that, you will no longer qualify for LTD or FMLA. Again, this issue is too complex for us to resolve online — you really need an attorney. If you cannot afford one, contact the Legal Aid office in the nearest large city. HTH, and thanks for reading the blogs!~ Caitlin

  67. Lorraine Says:

    Hi Caitlin:

    Lorraine again:

    I have not been release by my doctor or theripist. I had an appointment yesterday with my doctor and he wrote a letter stating that I a still under his care and still being treated for major depression disorder an also Post-traumatic stress disorder.

    I beleive they are still going to terminate me. At this point I can not mentally deal with the stress that they are causing me.

    This is not a high paying job and no worth fighting for – my mental health is more important to me.

    What I need to know is if they terminate me and once I am better and my doctor can release me, will I be eligible for unemployment.

    Thank you

  68. Samatha Says:

    I am writing for my sister in-law. We live in Nevada. She works for a large fortune five hundred company. She was pregnant and was taken off work four weeks before her due date. She had a c-section so was expected to be out for and additional eight weeks. On her sixth week post delivery she was diagnosed with a brain tumor and needed emergency surgery. She is now four weeks post op brain surgery and her employer told her that her job could no longer be held for her. She was only working for the employer for six months at the time of her leave. Is she able to apply for unemployment since she is unable to return due to medical issues? She is worried she will not qualify because they are claiming she has been absent for too long.

  69. Caitlin Says:

    Hi Samantha! This situation is fairly common. The employer actually did not have to hold your sisters job for her at all, since she has been with the company for less than 12 months. Even if she was covered by FMLA (and she is not) they would be obligated to hold her job for her for only 12 weeks. If she was absent longer than 12 weeks, she could be terminated.

    Once your sister is released by her doctor to return to work, and begins actively looking for a job, she will qualify for unemployment benefits if she has earned enough wages over the past 15 months. Even though technically she was “fired” for missing too much work, she had a legitimate reason for missing work due to a short term disability. Ideally, she should keep copies of any certifications from her doctor or the letter that releases her to return to work.

    When an employee is terminated for reasons beyond her control, she qualifies for unemployment benefits. Being physically unable to work is beyond your sisters control. If she is denied unemployment benefits, she should appeal that decision. HTH, and thanks for reading the blogs!~ Caitlin
    If your sister is denied unemployment

  70. Yolanda Gaytan Says:

    Hi Caitlin,

    I work for a small company, we have less that 50 employees. I have an employee who lives in Virginia and he has been out of work for one year and 3 months because of a motorcycle accident. He is in Hospice care and is going down hill as far as recovery is concerned. My question is can I write a termination letter since it is obvious he will not be returning. He is 73 years old and the company has been more than generous as far as taking care of him as far as his insurance premiums go. The company paid his Medical, Dental and Vision premiums for three months before we put him on COBRA. He chose medi-cal instead of the high cost of the insurance premiums.
    We did replace him with a new salesman since his territory is very big and offered to find another position is he did return to work. All this was laid out in a letter we sent to him in December of 2010.
    I want to be in total complience and at the same time be compassionate towards his condition. He worked for the comapny for 20 years and would probably still be here had it not been for the accident. Can we terminate a employee on Long Term Disability (it ends Nov 3, 2011)? And ask for a doctors report on his ability to return to work at this time?
    He is still on our life insurance but that will have stop also.
    Please let me know what are your thoughts on this.

    Thank you,


  71. Caitlin Says:

    Hi Yolanda! Kudos to you for wanting to do the right thing, as well as the legal thing. From your reference to Medi-Cal, we intuit that you are in California, which makes the answer a little more complex.

    First, the fact that this employee is in Hospice indicates that he is not expected to live. Hospices do not provide rehabiitation or recovery. They exist only to smooth the transition for dying patients and their families. Normally a person in Hospice is expected to die within 6 weeks to 3 months. It would take a miracle for this employee to leave Hospice alive.

    It seems unnecessarily harsh to send a dying man a letter stating that if he cannot return to work by (date) he will be termination. The most compassionate thing would be for you to cancel his life insurance and inform him of that, but not terminate him. You can proceed as if the employee will never return to work. If he does recover, you can address the issue at that point.

    As an alternative, you can send a letter asking when he expects to return to work. If the answer is “never” then you are justified in terminating him.

    If your company offers long term disability benefits, then he should be kept on the payroll as long as those benefits are effective. If the long term disability benefits are through the state and not through your company, you do not have that obligation.

    From an HR perspective, you have the legal right to terminate this employee. However, the more compassionate thing to do is to reduce the cost of keeping him as an employee, but not terminate him at this point. This problem will solve itself in a few weeks or months when he dies. HTH, and thanks for reading the blogs!~Caitlin

  72. Elizabeth Martinez Says:

    The HR Manager has been out on maternity leave since June 2011 due to pregnancy related complication. This was 3 months before her due date. I do know that she had unused vacation and sick days which she will use before FMLA would have kicked in. Given that, that would mean that her FMLA would have expired at the end of September. Which just gives her no more than 3 weeks since the birth of her child.
    There has been no contact from her on a return date. What would be the next step? The company does not want to terminate but seeing the lack of response from her, this might be the only way to go; using excessive absence. As the main contact for our Human Resources department we want to know if she will return, so that we can start finding a replacement for her.

    Thank You.

    P.S. WE are a privately held company in California with under 50 employees.

  73. Caitlin Says:

    Hi Elizabeth! You had us until the last sentence. In any state except California, you could terminate this employee if she did not return to work after 12 weeks of FMLA. However, California has 4 different family leave laws at the state level, and most of them apply to this situation.
    In California, employees are entitled to up to 4 months of Pregnancy Disability Leave, PLUS up to 12 weeks of CFRA to bond with the new baby after childbirth. PDL applies to employers with 5 or more employees. All of these leaves can be unpaid, but they are job-protected, meaning the employee must be returned to her job when the leave ends. FMLA and CFRA can run concurrently, but usually cannot start until PDL ends at childbirth.
    We are a bit puzzled by your mention of FMLA. Both FMLA and CFRA apply only to an employer with 50 or more employees within 75 miles. Both full-time and part-time employees count. If you have genuinely never had 50 or more names on your payroll, then you may be required to offer only PDL. However, you seem to be under the impression that your company is covered by FMLA, which means it would also be covered by CFRA.
    In California, you may be required to give the employee even more time off due to pregnancy disability, as a reasonable accommodation. This is not a requirement in other states. You may also be required to provide additional time off if the baby has a health problem — potentially, up to an additional 6 months. But that is unusual.
    Generally, you are required to continue paying your portion of any group health insurance only for the first 12 weeks of leave (the time covered by FMLA.) After that, you may be able to put the employee on COBRA.
    You are right to be concerned that you are not hearing from this employee, but in California, that is not sufficient reason to terminate her. The FMLA forms she was given when she began her leave should have specified how she was to remain in touch with the employer, and what frequency of contact is necessary. Having said that, it is very common for a new parent to be so exhausted and busy that she has no time to take a shower, much less worry about contacting work.
    To be on the safe side, you should send the employee a certified letter asking her to contact your office to update her status and let her know how often you expect to hear from her, and when she expects to return. Give her a choice of methods to contact you if possible — phone, email or letter.
    Your best bet is to hire an experienced HR pro on a temporary basis to fill in until your HR manager returns to her job. HTH, and thanks for reading the blogs!~ Caitlin

    Read more about California leave laws at:

  74. Elizabeth Martinez Says:


    Does it make a difference if an employee has not been with the company for a full year before going on leave? We also have never had 50+ employees on payroll for more than a year too. Which one would this employee be legally qualified for: PDL, FMLA or CFRA?

  75. Caitlin Says:

    Hi Elizabeth! Yes, it makes a difference. If you have 5 or more workers, every employee is covered by PDL from the day she starts to work for you — there is no one-year requirement. However, both CFRA and FMLA apply only to employees who have worked for you for 12 months or more. If the employee has worked less than 12 months, she is entitled to PDL but not to CFRA or FMLA after childbith.
    The federal FMLA applies to an employer with 50 or more workers. Both full and part-time employees are counted as “workers” for FMLA purposes. If you had 50 employees who each worked 1 hour per week, you would have 50 workers.
    Under the current regulations, if you had 50 names on your payroll for 20 weeks anytime during the current or previous calendar year, you are covered by FMLA. The 20 weeks need not be consecutive. For example, a store that had 50 workers For 10 weeks during the summer of 2010, and 50 workers for 10 weeks over the holidays in 2010, would be covered by FMLA for both 2010 and 2011.
    For FMLA purposes, every name on your payroll sheet (or computerized payroll) counts as an employee even if that person has not worked any hours in the payroll period.

    If the employee is not entitled to CFRA, you could have FMLA and PDL run concurrently and potentially terminate the employee after the baby is born.

    Because this situation is so complex, and because it is your HR pro who is on PDL, you should probably consult an attorney before terminating her in California. HTH, and thanks for reading the blogs!~ Caitlin

  76. Vanessa Says:


    I am on FMLA right now, and my 12 weeks of that will be up very soon. I am still not able to return to work, and my Doctor has kept me out due to my illness.
    Can I get fired, because they are “at will” employers.
    When I asked the human resources what happens if I need to be off longer then the FMLA time, she told me I needed to talk to my supervisor. This was in email, and was not very clear to me. Do you have any idea what this means?
    The employer I work for is a large organization, well over 500.

  77. Caitlin Says:

    Hi Vanessa! Unfortunately, yes, an employer can fire you when you are unable to return to work after 12 weeks of FMLA. A few employers offer additional unpaid medical leave. However, if your employer offered such a program, the HR person surely would have let you know. Her email implies that your employer will let you go, but the HR person would prefer that your supervisor tell you so.

    If you have a permanent disability, you may be entitled to additional time off as a reasonable accommodation under ADA, the Americans with Disabilities Act. Many conditions are considered permanent disabilities under ADA. If this is the case, you should contact HR again (in writing) and specifically use the words “additional unpaid time off as a reasonable accommodation under ADA.”
    Even if you do not have a permanent disability, a few states like California have family leave laws that would entitle you to additional time off. Sadly, in most states, an employee who requires more than 12 weeks off for a health problem loses her job. Some employers will allow you to apply for any open positions once you are able to work again, but they are not required to return you to your job if you take more than 12 weeks. HTH, and thanks for reading the blogs!~ Caitlin

  78. Vanessa Says:

    Thank you Caitlin.
    Well, I am on disability insurance now, and say they do let me go, when I am able to work again am I able to apply for unemployment since I would have been let go and able to work again?

  79. Caitlin Says:

    Hi Vanessa! If you have short term disability insurance, you may continue to receive benefits even after the employer lets you go. That coverage is not dependent upon employment. And yes, when you are recovered and your doctor releases you to return to work, you will quailfy for unemployment benefits because you would be unemployed through no fault of your own. HTH, and thanks for reading the blogs!~ Caitlin

  80. Rachel Says:

    Hi Im reciving STD benefits and my doctor has me out until 12-5-2011 return to work but my employer says i have to come back before that. I have given all paper work and im not recovered. Will i lose STD benefits if employer lets me go?

  81. Caitlin Says:

    Hi Rachel! That depends upon who is paying STD benefits to you. If you are receiving STD benefits from an insurance company or state program, they will continue even if the employer lets you go. If this is the case, once you are released to return to work, you will qualify for unemployment.

    If the employer is paying you STD benefits directly, and you are terminated, then the STD will end. However, it would be very unusual for the employer to let you go while you are still eligible for company STD, as long as your doctor has not released you. HTH, and thanks for reading the blogs!~ Caitlin

  82. Rachel Says:

    Thank you , im being paid by state CA disbilty office and doctor release date is 12-5-2011,i dont understand why my employer would impose a date for me? After several documents from 3 different doctors supporting date and why complications from surgery performed.

  83. Caitlin Says:

    Hi Rachel! That is good news. California has the best STD benefits of any state in the nation, with workers qualifying for up to 52 weeks of benefits in some cases.

    If you have exhausted all the types of leave that you qualify for (FMLA, CFRA, PDL, etc.) then the employer can legally lay you off. (In most states any employee who misses more than 12 weeks of work is laid off.) The employer is not saying that you have done anything wrong. They understand that you have a valid reason for not being at work, and must take care of your health first. But at some point, they simply need someone who can do the job. Because California law offers so much protection to employees, it is difficult for a California employer to hire a replacement for you, and let them go when you return to work. So they are choosing the same option that many California employers would choose — to let you go. You should quailify for unemployment benefits when you are healthy enough to work. HTH, and thanks for reading the blogs!~ Caitlin

  84. Rachel Says:

    Thank You ! Very helpful Caitlin need more caring people like you in world ,because my employer doesnt give rats a%% about employee health ..

  85. Caitlin Says:

    You are very welcome, Rachel!~ Caitlin

  86. Allen Says:

    My brother used his 12 weeks of FMLA, then his company gave him an additional 7 weeks of Leave. He received Short Term Disability for 13 weeks. He is currently applying for Long Term Disability. His employer fired him at the end of the 19 weeks. Is it possible for him to be approved for LTD and then collect unemployment compensation. He is still under doctor care for mental illness.

  87. Allen Says:

    BTW: My brother has documentation from his psychologist stating that his return to work date is January 15, 2012 and only at a part time status. Thank you for any feedback :)

  88. Caitlin Says:

    Hi Allen! It was appropriate for the employer to fire your brother after he missed 19 weeks of work. In many cases, an employee can be fired if he does not return after FMLA ends, so in this case the employer gave your brother 7 extra weeks off.

    Generally a person who is on long term disability does not qualify for unemployment benefits at the same time. Unemployment is only for people who are able to work, available to work, and actively looking for a job. Long term disability is only for people who are unable to work. So generally the two do not overlap.

    If your brother were relased to work full-time on January 15, 2012, and he began looking for a job at that time, he might qualify for unemployment benefits at that time. (He would no longer qualify for LTD, because he would have recovered.)

    In some cases, an employee can be partially disabled, or be unfit for one type of work, but able to do other types of work. In that case, it is possible that an employee could be collecting at least partial disability and unemployment at the same time. However, that is rare and we would advise any worker in that situation to contact an attorney. HTH, and thanks for reading the blogs!~Caitlin

  89. Kimberly Says:

    I was transferred to a team on October 15, 2009 to learn a new position.

    1) While in training I had to use some time off for FMLA, my new manager did not like that much. He questioned me about it and ask how much of FMLA I would be using time to time. (One of my friends told me to be careful with him because he is known to find reason to fire employees with FMLA).

    2) I went out on short term disability on Dec 26, 2009. My manager gave me and the ADA resource department a hard time, I has to go up there twice to have the manager complete the required paperwork, he never did. An HR rep had to complete it after my complaint. Then when it came down for me to get paid my manager did not even do that. I had to wait till I got back to work Dec 28, 2009, I called HR and she helped me with the process.

    3) So as of Jan 2010 I sat side by side with other employees to learn the job tactics. He only gave me less than a month to build my pipeline.

    4) Come to find out I never received a raise for 2009.

    5) When I received my 2009 year end performance review he completed it poorly and said I needed improvement, this all was done on 10-31-2009. The manager before him also noted that I needed performance management. I was only on her team 1 month and also was in training learning a totally different job. I asked around to other employees and they said because we were all in training and was not under her long enough she just used the performance evaluation from their previous manager. why did she not do me the same way?

    6) So I fought the weak performance review and ended up calling the EEOC, they are currently investigating them.

    7) Back to the manager whose team I was on when I returned from disability. I spoke with his managers several times about removing me from his team, he did not. I had more situations with the manager, so I went above his managers head. I spoke with Wendy W. and she immediately removed me from his team.

    8. When I was up under another manager as of April 2010, he calls me in a meeting and said he was going to put me on a final warning for not hitting goal Jan Feb and March of 2010. What? why would he write me up for not hitting goal while in training? I went to his manager and HR and they both agreed that he should not have done that and had him to return the write up.

    9) Ever since he made my name look bad I noticed management treats me weirdly. I recently was terminated March 2011. They fired me saying I hung up on customers. I called the EEOC after they terminated me and the EEOC notified them with a charge of retaliation. My manager lied and said I admitted to hanging up on customers, etc. and that is basically why they went ahead and fired me.
    10) What recourse do I have, what can I do? Will the EEOC find them guilty?

    11) In this entire posting, what situation would you find most illegal? thanks.

    12) I just want my life and job back the way it use to be back in May 2009.

    13) Oh I want to add that my previous managers in 2009 gave me an outstanding midyear performance and I also hit goal every month, so how could it be legal for them to give me a warning on my year end performance review, when I had an outstanding midyear review just in Aug 2009?

  90. Caitlin Says:

    Hi Kimberly!
    There are a lot of issues in your post, so we have numbered them for easy reference. This is not a clear-cut case of discrimination or retaliation. We are most concerned about the company denying your FMLA rights. However, this occurred almost 2 years ago (in 2009) and it is a problem that you have waited so long to report it.

    To answer your questions in order:

    1) The FMLA regulations require that employees be notified in writing of their FMLA rights, and given the forms to fill out, within 5 days of any absence that could be covered by FMLA. Those regulations were implemented in early 2009. We suspect that the manager was unaware of them, but HR should have corrected him. Based on this alone, you may have a case of denial of FMLA rights. You should report it to the US Department of Labor ASAP. Because you have waited so long, they may not be willing to investigate. If that is the case, you may want to consult an attorney.

    It is appropriate and reasonable for a manager to ask how much time you anticipate taking for FMLA. If you do not know, you should reply that you do not know. If the manager seemed to be harassing you for taking FMLA, that is illegal retaliation and should be reported to the EEOC and US Department of Labor.

    2) Under FMLA, an employer cannot take any negative action against an employee for using FMLA. Nor can the employee be penalized for work that is undone while she is on FMLA. Time off under FMLA is not considered an absence for diciplinary purposes. It sounds like this manager did retaliate against you for taking time off under FMLA, which is handled by the US Department of Labor.This could also be discrimination based on a perceived disability, which is handled by EEOC.

    3) FMLA does not excuse poor performance during the time you are at work. The company had the right to expect you to perform like any other employee who began training in January 2010. (If you had trained a month before FMLA, they had the right to expect you to perform like any other employee who started training in December 2009.) The employer cannot treat you worse because you took time off under FMLA, however, they are also not required to treat you better because you took time off.

    It is reasonable for the employer to set performance standards for employees in training. If they applied the same standards to you as to other employees, based on the amount of time you worked, that is lawful and appropriate. However, they cannot hold you to the production standards that would have applied if you had been in that position since Oct. 2009.

    There is no law that an employer must give workers time to build their pipeline. If other trainees were held to the same standards, then this is lawful. If you were treated differently from other trainees, then this is illegal retaliation based on FMLA, which may be investigated either by the EEOC or US DOL.

    Continued below…

  91. Caitlin Says:

    Hi again Kimberly,
    4) There is no law that an employer must give raises to employees.
    5) Your performance reviews were valid if they were based upon the time you were at work. It would be illegal retaliation for the employer to penalize you for not finishing training, for example, if your training was delayed because you were on FMLA. However, the employer can hold you to the same standards as other employees for the time you were at work. Apparently the previous manager who supervised you for only one month thought that your work was not as good as the other employees she supervised. There is nothing illegal about this. Then, in October, your current manager also gave you a poor performance review. Again, as long as this was based upon the time you spent at work, it was valid.
    6) A bad performance review is a poor reason to file a complaint with the EEOC. It is hard to see how this was related to FMLA, since apparently this review happened about the same time or before you first took FMLA. If the bad review was based upon work that was not done because you were on FMLA, that is illegal. However, if you were held only to the same standard as other employees based on the time you worked, the performance evaluation was appropriate. Frankly, you hurt your case with the EEOC by waiting until you got a poor performance evaluation and then filing a complaint about it. Many times, an employee who is not doing a good job receives a poor review and then files a bogus complaint to try to “get even” with the company. The EEOC rightfully regards these as nuisance complaints. If you felt that the performance review was unjustified and was retaliation for you taking FMLA, then you should have filed a complaint with the US DOL at
    7) It sounds like there was a personality conflict between you and this manager and Wendy W. handled that well.
    8. An employer can set goals for employees in training, and discipline an employee who does not reach those goals. But again, your performance must be based only upon the time you worked. If you had trained for 2 months, the employer can require you to achieve the same as another employee who had been training for 2 consecutive months. They cannot require that you achieve what you would have if you had been consistently working in that position since October. Again, it sounds like the company handled this appropriately.
    9) It is unlawful for an employer to target you for negative action simply because you took FMLA or filed a complaint with the EEOC — this is illegal retaliation. However, employers are understandably leery of employees who file complaints. Especially if the complaint follows 6 months of poor performance reviews, it suggests the employee simply is not doing a good job and trying to blame it on everyone else. Filing an EEOC complaint is a big deal. For a business, it is the equivilant of calling the police or the IRS. Frankly, it looks to us like you did not file a complaint about FMLA retaliation when you did have a valid reason. Then, when you received two poor performance reviews, you did file an EEOC complaint when you might not have had a valid reason.
    It is illegal retaliation for the employer to invent a reason to fire you, simply because you have filed a complaint with the EEOC. However, they can hold you to the same performance standards as anyone else in your job, and fire you for poor performance.
    Even if your original complaint to the EEOC was invalid and without cause, retaliation is still illegal. And it appears that your termination may be illegal retaliation. You were right to report your firing to the EEOC.
    10) At this point you have reported everythig to the EEOC. The only other action you can take is the one you should have taken first — reporting the FMLA denial of rights and retaliation to the US DOL. You should do so, even though they may find it is too late to do anything. (Or, they may leave the investigation up to the EEOC.) At this point all you can do is look for a new job, and wait while the EEOC investigates — which may take many months. If the EEOC finds investigation finds no illegal acts by the employer, you can try to hire an attorney and sue the employer for retaliation and wrongful termination, but it will be an uphill battle.
    11) It looks to us like you have a poor case for discrimination, but a better case for retaliation — assuming the company cannot prove that you hung up on customers or admitted to hanging up on customers.

    12) We understand your feelings, but things are not going to return to what they were in May 2009. Change is the only constant in the workplace, and the employer has the right to hold you to new standards.
    13) It is really easy for them to give you a warning on your year-end 2009 review, when you had a good performance review in April 2009. Some employees do have a significant drop in performance in a single year. Doing a good job in April is not guarantee that an employee is still doing a good job in September. The employer also has the right to change the rules of the game without consulting you. The employer can suddenly decide you need to achieve twice as much, or five times as much, to meet their expectations. As long as other employees in similar jobs are held to the same standards, this is legal. It is reasonable for an employer to deny a worker a raise if she did a good job for 4 months and a poor job for 6 or 7 months of the year. It is reasonable for an employer to issue a written warning to an employee who is not meeting the new goals. It is also lawful for different managers to have different expectations.

    Again, if you feel this was illegal retaliation for taking FMLA, you should have reported it at the time, rather than waiting until you were fired. It may not be too late to report it, but do so now.

    We will give you the same advice we always give those with an EEOC complaint. Sit down and write a timeline that includes every incident that you believe relates to your complaints about FMLA, ADA or EEOC. Include the names of any witnesses present or any other sources. This is an important resource for you to use in working with the EEOC or an attorney. Meanwhile, you should focus on looking for a new job, because you are unlikely to be returned to this company.

    This is a complex isues, and it is possible that we have misunderstood parts of the situation, so feel free to post more info. HTH, and thanks for reading the blogs!~ Caitlin

  92. Kimberly Says:

    Thanks again for your input. However I did called the labor something regarding FMLA, they said they could not help me as long as my FMLA was eventually paid. and as far as calling the EEOC after my findings of a weak performance review was only because the manager kept harassing me. I originally called an attorney regarding workplace harassment. The attorney said that I need to 1st call the EEOC, and said I have a possible discrimination for disability case. I also want to add that I am aware of employers doing whatever that like when it comes to performance and raise. However an issue was raised when I found that I was treated differently. and also wanted to reiterate that I performed very well from Jan to Aug. 2009 and received a fair midyear review. Sept and Oct I was in training and received a weak performance and did not get a raise based on 2 months, that is what bothers me. As I remember a manager had a meeting and said she was so excited to say that everyone on her team including me was doing a really good job. So I feel that her and the other manager plotted together just to make me look bad so that I would not get a raise. Why? is the question I’m asking. Everyone knows that these two managers are known for mischief.

  93. Caitlin Says:

    Hi Kimberly,

    It sounds like you may have contacted a state department of labor rather than the U.S. Department of Labor (at which is the federal agency. A state agency might get involved if you were promised short term disability pay but never received it. However, under the federal FMLA, leave is unpaid. It is the federal law that requires an employer to provide FMLA papers on a timely basis, and prevents retaliation.

    It sounds like whomever you spoke with understood that you were complaining about not receiving STD pay, rather than about illegal retaliation for using FMLA.

    You may have a case for disability discrimination (if you are disabled) or for discrimination based on a perceived disability. The next time you talk to the EEOC, you should mention that you never had any of these problems until you took FMLA.

    If you can supply the EEOC with the names of coworkers in similar jobs, with similar performance reviews, who did receive an annual increase, that might support your claim of illegal retaliation.

    When two managers plot together to get rid of an employee because they do not like her, that is unfortunate, but in many cases it is legal. If that dislike is based upon the employees race, color, religion, or disability, that is illegal discrimination. If it is based upon the employee using FMLA or filing an EEOC complaint, that is illegal retaliation.

    Your best bet at this time is to wait until the EEOC concludes their investigation. If they find no discrimination or retaliation, you can hire an attorney to sue for wrongful termination, but again, it would be an uphill battle. HTH, and thanks for reading the blogs!~ Caitlin

  94. Chris Says:

    I have been on FMLA/STD since 8/30/2011 and during that time I have been working for the company. Can they fire me after my FMLA ends and what is my recourse in this? I had major surgery and have not been released to return to work.

  95. Caitlin Says:

    Hi Chris! There are a couple of concerns here. First, as you know, FMLA permits an employee to take up to 12 weeks of job-protetcted leave for a serious health condition, including surgery. If you can return to work in 12 weeks or less, the employer must return you to the same job. However, that protection elapses if you are away from work more than 12 weeks.
    Any time that you spend working cannot be counted as FMLA. Suppose you normally work 40 hours per week, and last week you were on FMLA but worked 2 hours. The company can only count this as 38 hours of FMLA.
    Also be aware that many, many companies forbid employees from working after surgery until the employee can produce a doctors release. If you were working from home without the employers authorization, you could be terminated for it. This is a major issue for employers because it involves workers comp liability.
    If you had the employers permission to work, you should contact them now and let them know that you have been working, so they can tabulate FMLA correctly. If you did not have authorization to work while on FMLA, you may want to consider whether disclosing this is in your best interest.
    By working part-time while collecting short term disability benefits, you may also have been committing fraud, unless you were paid for the time worked and reported that income.

    You should also be aware that in most states, once you have exhausted FMLA and do not have a doctors release to return to work, you can be terminated. There is little recourse here. By letting you go once you have used up all FMLA, the company has not done anything wrong or illegal. You could certainly consult an attorney, however, there is probably not a lot the attorney can do about this situation (unless there are other critical facts you have not shared with us.)

    In most states, the employer is not required to offer short term disability and FMLA is unpaid. So, the employer is at least trying to do the right thing here. Short term disability partially replaces income lost when you cannot work, but it does not protect your job. In other words, once you use up all FMLA, you can be terminated even if you are still entitled to STD payments through insurance or a state program.

    If your condition is a permanent disability under ADA, you may be entitled to additional unpaid time off. However, if you do not have a permanent disability and are expected to make a full recovery in 5 months or less, you may very well be fired if you use up all FMLA and cannot return to work. HTH, and thanks for reading the blogs!~ Caitlin

  96. fm MALIK Says:

    My city supervisor is a police SGT. He wrote me that at the end of my one year of my injury which occured while I was at work during an intermittent FMLA. I did file workers comp and I had to get on a short-term disability from my employer. Now Supervisor is recommending that my employment end with the city on the one year of my injury. I am able to work and have submitted a release back to work without restrictions about four weeks in advance of my one year injury.

    1. I was on intermittent leave for personal medical reasons. I came back to work with a doctors note and resumed work.

    2. I got hurt on the job and filed for Workers Comp.

    3. My workers comp was not approved and I had issues with it. I had lost the claim; but employer did acknowledge such event took place but I didnt sustain any injury. I had filed an appeal and during this process of appeal my supervisors of PD wrote me a certified letter recommending my employment with the city end.


  97. Caitlin Says:

    Hi fm! The short answer here is that you need to consult an attorney, preferably one who specializes in personal injury, workers comp or employment law.
    If you were on workers comp, an employer cannot terminate you simply because you have been injured. However, you were not on workers comp.
    If you are on FMLA and can return to work in 12 weeks or less, by law the employer must return you to your old job. You cannot be fired for using FMLA. However, if you were off work longer than the 12 weeks of FMLA, the employer can terminate you at that point.
    It is possible that the employer is illegally retaliating against you for filing a workers comp claim, or using FMLA. Again, your best bet is to consult an attorney. HTH, and thanks for reading the blogs!~ Caitlin

  98. gerald Says:

    Hello, I have been out of work since nov 23 , due to back problems, will have to have back surgery, i am on short term dis, right now till dec 22 , have filled out the 12 week leave form, when does it start and if i am out longer to recouperate can my co . fire me. I drive a trash truck and sometimes have to get out and help my helper, if they do can i draw unemployment and for how long? And if they do fire me can i take any action against them? thanks for your reply, and MERRY CHRISTMAS !!!

  99. Caitlin Says:

    Hi gerald! We have all the answers for you. First, you need to get those FMLA forms back to the employer ASAP. Normally, an employee has only 15 days to return them to the employer. If you do not return them on time, the employer is not required to grant you leave and can fire you.
    The important point to remember is that short term disability and FMLA are two separate things. Disability provides payments to partially replace the income lost when you are unable to work. FMLA protects your job, and provides for continuation of health insurance. Usually, they both run concurrently, which would mean that your FMLA will be effective Nov. 23. In other words, the time you have already been away from work can be counted as FMLA, even though you are also on short term disability.
    As you may know, FMLA provides you with up to 12 weeks of unpaid, job-protected leave. That is not 12 weeks in addition to vacation, sick leave, and short term disability. That is 12 weeks total, with all those benefits and unpaid leave combined. If you can return to work by Feb. 13, the employer must return you to your job. If you are not able to return to work at that point, the employer can legally let you go. You cannot take action against them. They do not have to hold your job forever — only for 12 weeks.
    If you are able to return to work and can drive but not help the trash collecter, the employer is not under any obligation to put you back to work. Some companies would offer such “light duty” and some would not. Again, if you cannot perform all your duties by Feb. 13, they can let you go.
    If your back condition qualifies as a permanent disability, then the employer must make reasonable accommodations for you. However, there is not a reasonable accommodation for every job.
    If you are fired because you are unable to return to work on Feb. 13, you may be able to continue collecting short term disability. Once you are recovered and physically able to work, you can file for unemployment benefits. They will last for 26 weeks, maybe longer if Congress approves an extension. HTH, thanks for reading the blogs, and Merry Christmas to you, too!~ Caitlin

  100. gerald Says:

    thank you for the reply , my chirco put me out of work on the 23 of nov . got an appt for the back dr for 12/14/11, and he have fill out some questions on the flma form , so it might take more than 15 days to get it bach to company . they have to understand it takes time to see a dr . , right .

  101. Caitlin Says:

    Hi gerald! No, they do not have to understand. You have 15 business days to get those forms back to the employer. If they are not turned in by then, the employer can deny your FMLA because you failed to provide the required paperwork. If you fail to turn in the FMLA paperwork on time, you can be fired for absenteeism.
    The FMLA forms can be filled out by any health care provider, including a chiropractor. It is better to return incomplete paperwork to the company on time, than to return complete paperwork late. Again, even if the paperwork is filled out perfectly, if you return it to the employer one day late, you can be terminated.
    These regulations have been in place since 2009. Most doctors are aware of the urgency, and will fill out as much as they can on the paperwork, even if you do not have an appointment. In other cases, they will give you an appointment right away, so the forms can be completed. If the FMLA forms are returned within 15 business days but they are incomplete,the employer must give you a reasonable time to get them completed. However, if the forms are not returned on time, FMLA can be denied.
    The FMLA forms should contain two parts — a request for FMLA signed by you, and a certification of your serious health condition signed by a health care provider. Even if it is impossible for you to get the certification signed by the due date, you should get your portion of the forms returned to the employer ASAP — meaning tomorrow morning. HTH, and thanks for reading the blogs!~Caitlin

  102. gerald Says:

    thank ,but are you saying since i will be out for the month of jan 2012,l will lose my vacation for 2012.and i did return my form back on the 5th of this month tell them that my appt was today. and they said take them to a dr .

  103. Caitlin Says:

    Hi gerald! It is good that your employer is being reasonable about the FMLA certification forms. Once you return the certification, they will notify you in writing within 5 business days of your FMLA status. That notification will have a date on it when you must return to work. Pay close attention to that date. If you are not able to return to work then, the employer can let you go.
    Vacation is a matter of company policy, and each company sets its own policies. Most companies do not award vacation to employees who are on a leave of absence. They would require that you return to work (for at least one day) before they award vacation. Other companies would award vacation while you were on FMLA, but it would be prorated based upon the number of weeks you actually worked in 2011.
    However, this is what we were saying about leave. Many employees on FMLA are mentally thinking,”I have 2 weeks of sick leave + 2 weeks of vacation + 12 weeks of unpaid FMLA, so I can take a total of 16 weeks off.” This is not true, because the employer can count those weeks of sick leave and vacation as FMLA. In actuality, the employee has 12 weeks of FMLA to use, and has enough paid leave time accumulated to collect full salary for 4 of those 8 weeks. This is a complex issue, so feel free to post any additional questions you may have. HTH, and thanks for reading the blogs!~Caitlin

  104. gerald Says:

    but since i am on std that would not affect my vac for 2012, saying as of jan 1 2012 i have four wks , will it be used as part of my 12 wks off .

  105. Caitlin Says:

    Hi gerald! Yes, if you are awarded 4 weeks of leave on Jan.1, 2012, the employer can count them as part of your 12 weeks of FMLA. Put very simply, suppose your FMLA papers say that your leave ends on Feb. 12 and you must return to work on Feb. 13. You cannot assume that you will be allowed to use 4 weeks of vacation beginning Feb. 13, to push your return-to-work-or-be-fired date into March. Some employers would permit this, but there is no federal law that they must. Does that make sense?~ Caitlin

  106. Caitlin Says:

    Hi again gerald! I will add this: STD is really irrelevant. Short term disability partially replaces the income lost when you are unable to work. It does not protect your job. Only FMLA protects your job. Most employers require that you use FMLA for the first 12 weeks that you are on STD. After that time, you may continue to receive STD payments, but you can also be fired from your job.
    Some insurance policies provide STD benefits for 26 weeks or even 52 weeks. However, the employer can still let you go if you do not return to work after your 12 weeks of FMLA end.
    What state are you in? Because this answer would be radically different in some states like California. And, what is the source of your STD? Is it from an insurance policy, from the employer, or from the state? It makes a difference in terms of job-protection. HTH, ~ Caitlin

  107. gerald Says:

    hello, i will be getting 2 fusions next week , after that what co. will want to keep me or hire me , do you think SS DISABILIY might be a choice the L3 and L4 and a crack on my spine . this worries. me a lot .

  108. Caitlin Says:

    Hi again gerald! What really matters is what you can do — not what treatments you have had.

    You are not required to disclose a diagnosis or treatment plan to your employer — and you should not do so. Even the FMLA forms require only that the doctor certify that you have a serious health condition — it does not require that he specify what that condition is or what your treatments are. To prevent illegal discrimination, you should make it clear to your doctor that you want the diagnosis and treatment kept private. The HIPAA privacy act forbids the doctor from sharing this information without your written consent.

    We see this all the time. Many, many employees share too much health information with their coworkers or employers. It is best to give as little information as possible.

    Under no circumstances should you tell your employer that you are having fusions. You can tell them that you are having surgery, and when your expected return date is. (Even if you will never be able to return to work, do not tell the employer that until your 12 weeks of FMLA are up. If you tell the employer you will never return to the job, they can cancel your health insurance that day.)

    Your continued employment is based upon what you can do, not on your medical records. Under the Americans with Disabilities Act or ADA, it is illegal for an employer to take negative action against a worker based upon medical information, as long as the employee can physically do the job. It is also illegal for an employer to refuse to hire someone who is able to do the job, based upon medical information. This is true, even if you do not have a permanent disability.

    If you do have a permanent disability after the surgery, the ADA requires an employer to make reasonable accommodations for you.(Assuming that you can do the job with the accommodation.)
    If you will be unable to work for 5 months or more, applying for Social Security disability is one option. You should apply as soon as possible, because SSI is retroactive to the date you applied.

    We are not medical experts, so we do not know your prognosis. Many people with spinal fusions make a full recovery. But suppose the worst happens, and you do not fully recover. In fact, suppose that you have a permanent disability. Many, many disabled people, including those who are deaf, blind or in a wheelchair work full-time. There are special training programs for a disabled individual to learn a new trade. So the future is not as bleak as it seems right now.

    We suspect that you are in a lot of pain right now. Pain tends to destroy our outlook on life, making everything seem grim and depressing. Concentrate on getting better, handle one challenge at a time, and things will improve. Right now you just need to focus on the surgery and rehab that follows. We are here to answer your questions as you go through this process. HTH, and thanks for reading the blogs!~ Caitlin

  109. gerald Says:

    thank you for your wise words , thank you

  110. Caitlin Says:

    Hi again gerald! You are very welcome, and have a very Merry Christmas in spite of it all!~ Caitlin

  111. Lorraine Says:

    Hi Caitlin:

    I wrote to you several times ago about my situation at work. I was on STD and FMLA for 12 weeks. I was still still under my doctors care and have everything documented to prove this when I was terminated from my job.

    I filed for unemploment about a month ago and it was approved since I was fired by no fault of my own.

    I received a letter yesterday from the Unemployment that the company is asking for redetermination and I have a hearing on 12/27/2011. They are stating that I voluntarily quit.

    I have never said or put anything in writing saying this, In fact when I received the letter from my company stating that I will be terminated on October 28th I called HR on Oct. 21 and had explained that I was still under my doctors care (They received a certified letter from me about this)I mentioned I would be able to return once my doctor gave me my fit for duty letter. I asked if my job was open and they said it was not and I am terminated as of Oct. 28th.

    I was surprise to receive this letter since it was no fault of my own.

    I have all my documentations from my doctors and psychologist.

    Should I be concerned that my unemployement will be taken away. I have never heard anything like this.
    This company has been a nightmare and caused me to have a mental breakdown and now that I am feeling better and ready to go back to work I feel like I am being harrassed.

    What is your opinion? Can they do this?

    Lorraine Call

  112. Caitlin Says:

    Hi Lorraine! Do not be too concerned. Some companies routinely dispute every unemployment claim, because the more claims a company has, the higher their payroll taxes are. You have documentation that you were willing to return to work as soon as your doctor released you. Simply make copies of all these documents. The justices at these hearings are very fair. Simply tell your side of the story without being dramatic. The fact that the company caused your nervous breakdown is not relevant to this hearing. The facts are 1. You had a health problem but let them know in writing that you were willing to come back to work when the doctor released you and 2. When you used all FMLA, they terminated you. That is all the hearing justice will really be concerned about. HTH, and thanks for reading the blogs!~ Caitlin

  113. marie Says:

    Hi, I am currently 7 months pregnant. I am due March 14. I suffer from major depression and anxiety. I am currently off of my meds due to the pregnancy and have reached my threshold. Work has become insufferable. My therapist and dr. want me to take std. My blood pressure is high also. I spoke to my employer about all of these concerns in hopes of a solution and some guidance as to what I should do. My boss basically told me that I could take std (we only get max 13 weeks) now but that would impede on my time after the birth unless I come back for 15 days and then file another claim. She also told me that if I take more than 3 months of std that she will not hold my position as manager/supervisor and I will have to take a pay cut. Is this legal? Do I have to accept a lesser paying job and title once I return to work or could i file for unemployment? She also gave me another option that if I got on STD now and want to take more time after my 13 weeks of STD is up due to the birth that I could go on unemployment.

  114. Caitlin Says:

    Hi marie! Yes, this is legal and even generous, but there may be other options available to you.
    You are fortunate to have STD available, and very fortunate to be able to use 13 weeks of STD, return to work for 15 days and use additional STD. Most women in the U.S. have only unpaid maternity leave or unpaid medical leave.
    The federal FMLA requires the employer to give you a total of 12 weeks of unpaid, job-protected leave for pregnancy, childbirth and baby bonding combined. FMLA runs concurrently with STD. So, if you are away from work for 12 weeks and then return, the employer must return you to your current job with the same hours, wages, responsibilities and working conditions. However, if you are away from work more than 12 weeks in a 12-month period, your job is no longer protected. The employer actually does not have to offer you any job when you are able to return, so they are being generous by offering you a different job.
    Yes, you can decline the new position and, once you are released by your doctor to return to work, you will likely qualify for unemployment benefits. Your boss was mistaken about one thing — you cannot use unemployment to extend your STD. An employee who is unable to work due to a temporary disability, does not qualify for unemployment benefits until she is released to return to work.
    However, there may be another option available to you. The EEOC changed the definition of a “disability” in 2009. Currently, depression or anxiety is often a permanent disability under the ADA, the Americans with Disabilities Act. That law requires employers to make reasonable accommodations for an employee with a permanent disability. Granting time off or extended job-protected std is a fairly common accommodation.
    You should probably not be discussing this with your immediate supervisor. Contact the company HR department, and let them know that you are requesting extended job-protected time on std as a reasonable accommodation. To be on the safe side, use the words “a reasonable accommodation for a disability under the ADA.”
    By law, HR must keep any health information you disclose during these discussions private. It cannot be shared, even with your supervisor. Nor can it be used as the basis for any future employment decisions like layoffs or promotions.
    Note that pregnancy is not a permanent disability, so you are not requesting the time off for your pregnancy. You are requesting additional time off due to your disability of anxiety and/or depression.
    There is no guarantee that the employer will grant your request for this accommodation, but we would say your chances are probably 50/50. This is a complex topic, so feel free to post additional questions that you may have. HTH, and thanks for reading the blogs!~ Caitlin

  115. Dave Says:

    I just returned from STD for my back surgery and within days my boss had me sign a poor performance plan and I have been told I am being targeted for termination. My company even sent out a revenue plan which clearly states that they intend to replace higher salaries with lower salaries and my position is the one they state is being replaced. I have worked there for 12 years and always received excellent performance reviews and even got a raise last year when no one else did due to a bad revenue quarter. The tasks on my performance plan are ones they have not been able to complete in the past year due to the software was not designed to perform that way. I have been tasked to complete that task as well as others within 30 days and have to say it is impossible. I have never been talked to about any issues until I returned from my STD which I took 12 weeks before returning to work. If they fire me will I be able to draw unemployment while looking for another job? I have been applying for a new job before they fire me but so far no interviews due to the economy. Help give me some advice! I have never been fired in my life and have an excellent resume. Thanks!

  116. Caitlin Says:

    Hi Dave! There are several issues in your post. First, it is legal for an employer to decide to terminate higher-priced employees and hire those with lower salaries. Many, many companies are going through this type of reorganization at this point. The employer could just fire you without warning (in most states) or announce that your salary will be cut. They do not have to put you on a performance improvement plan to accomplish any of this.
    The employer may be taking this action to avoid paying unemployment when they let you go. Or, the employer could be doing this for an internal political reason that has little to do with you. Or, this may be illegal retaliation for you taking STD, or it may be illegal age discrimination if you are over 40. These last two reasons are potentially illegal discrimination, so you should consult an attorney about your case now, before you lose your job.
    Meanwhile, document the situation by writing a respectful, concise but clear email or memo to your boss, his boss, HR and any other interested parties. Outline the fact that what you are being asked to do is impossible with the current software, because it just was not designed to perform that way. Suggest an alternate solution, such as buying different software. Reiterate that you have a long-term history of exceptional performance, and are committed to the long-term success of the company. Make it clear that you will do whatever you can to ensure that success, but there are constraints imposed by the software.
    Print out a copy of this email and keep it at home — if you are fired, you will not have access to your work email. Also save a copy of the business plan that shows the company is eliminating higher-paid positions.
    Ideally, if you are terminated, these documents will demonstrate to the unemployment agency that you were not fired for cause, you were laid off for financial reasons and are therefore entitled to unemployment benefits.
    The employer may try to make your life miserable so you will quit and not qualify for unemployment benefits. Do not give in to this strategy. This is a complex issue, so feel free to post any additional questions you may have. HTH, and thanks for reading the blogs!~ Caitlin

  117. debra barton Says:

    I have a question about STD. First I would like to say I have been on FMLA for 12 wks. and my employer gave up my position, understood. My illness has kept me from returning to work until now. I have been on STD for 6 months which runs out 01-13-2012 or 01-16-2012 not sure which is the correct date. My dr has released me to return to work, and there are 2 positions that I qualify for in the same dept. that I worked before my illness. I applied for both positions but was told they cant guarentee I would get one of the positions available. How can they not give me one of those positions when I applied before my termination date, Wouldnt I still be employed with them?

  118. Caitlin Says:

    Hi Debra! You are assuming that the employer must give preference in hiring to current employees rather than other applicants, but that is not true. The employer has a job opening. They can select whichever applicant they like to fill the job opening. It is up to the employer whom they hire.
    If you had returned to work after 12 weeks of FMLA, the employer would be obligated to return you to your previous position. However, if you are out more than 12 weeks, the employer is not legally obligated to give you any job at all when you are ready to return.
    We agree that the logical move would have been for the employer to hire you for one of the open positions. After all, you are already familiar with the department, and presumably would require less training than another applicant. However, there is no law that the employer must make this decision. They may hope to hire someone at a lower wage, or have another reason why they would rather not hire you back. They might also believe it could create interpersonal problems for you to see someone else in your old job.
    If the employer refused to hire you because simply you had used STD in the past, that would be illegal discrimination. However, they can choose to hire someone else if they want to. HTH, and thanks for reading the blogs!~ Caitlin

  119. Melissa G Says:

    I will be taking a 10 week maternity leave using STD and FMLA. I currently have been counseled for poor performance and have received a poorly rated performance review. Will this performance issue impact me, or am I protected since I will be returning before 12 weeks?

  120. Caitlin Says:

    Hi Melissa! You cannot be fired for missing work due to taking FMLA, but FMLA does not protect you from being fired for poor performance. The two issues are unrelated.
    Under the federal FMLA, the employer must return you to your current job when you are ready to return to work, unless you exceed 12 weeks of FMLA.
    However, you are still held to the same performance standards every day that you work, that would normally apply to anyone in your job. There is no grace period before or after FMLA where poor performance must be tolerated. The employer has the right to impose the same performance standards as usual, based upon the days that you work. This is a complex issue, so feel free to post any additional questions. HTH, and thanks for reading the blogs!~ Caitlin

  121. Melissa G Says:

    A follow up question. What about the STD? Is it possible the insurance company may request info about my performance rating before deciding to grant me benefits before I go out on leave in a month?

  122. Caitlin Says:

    Hi Melissa! No, your job performance has nothing to do with whether you are entitled to benefits from an insurance company or not. If you are still employed on the day your short term disability begins, you are entitled to benefits from the insurance company. (If the STD benefits were being paid to you by your employer, rather than an insurance company, that would be a different story.)
    It is possible you could be fired for poor performance before you go on FMLA. However, if you are still employed when your doctor recommends that you go on leave, you are automatically covered by both STD insurance and FMLA.
    If you believe the performance improvement plan is in retaliation to your pregnancy, rather than a reaction to poor job performance, that would be illegal discrimination. You should report that to the EEOC at HTH, and thanks for reading the blogs!~ Caitlin

  123. Jen Says:


    I am currently on FMLA due to mental and physical reasons. I am also collecting short term disabilty that is specified in a union contract. My FMLA is up in 2 weeks and my doctor is unsure of whether I can go back at that point or not. The contract allows for 26 weeks of disability. My question is if I am fired while out on disability can I collect unemployment if I am released to go back to work?

    Thanks so much!

  124. Caitlin Says:

    Hi Jen! Yes. If your doctor does not release you to return to work in 2 weeks, you will have exhausted the 12 weeks of FMLA. At that point, some employers would allow you to take additional time off, but unless you have a permanent disability, there is no law that they must.
    Many employers would let an employee go when she is unable to return after 12 weeks of FMLA. If your doctor later releases you to return to work, at that point you would qualify for unemployment benefits. This is because you did not quit your job or commit misconduct. You were terminated when you were too ill to work and unable to return after FMLA.
    To be on the safe side, keep a copy of the doctors release with the date on it, and a note from the doctor stating you cannot return to work when 12 weeks of FMLA are up. If you are denied unemployment, you should appeal that decision. HTH, and thanks for reading the blogs!~Caitlin

  125. Sharon Says:


    I am a 14 year employee of a large company. I am a VP and hold a significant amount of responsibility. 2 years ago a new boss came is and the bullying has not stopped. I originally reported him to HR and it stopped for a while. He actually ignored me for most of 2010. I thought I could out last him as I had 5 bosses in 14 years. In June 2011, He gave me my first ever poor performance review that was completly subjective. From an objective perspective I historically ranked in the top quartiles of my peers. He trumped up things like “not strategic”, “not a fit” and other subjective items. He also made negative comments about my presenation skills even thought he had not even been out with me at a client in almost a year. I went to HR again on to be told to deal w/ it and then 2 months later out of the blue was put on a 60 day oral warning and then followed by a 60 day PIP. All with subjective criteria that he insured I failed on. At the end of December I had a nervous breakdown and went on FMLA and STD. On 2/1 I indicated I was going to return. When I did I was immediately told I was being terminated on 2/10 (today). Even though I said I was coming back because I thought I had to, my doctor never approved my return. So I was told I was being terminated ans I am not even sure I am legally back from fmla/std? Can they do this? Does the law require a note from my Dr before I was to return? Can they terminate my employment under these circumstances?


  126. Caitlin Says:

    Hi Sharon! There are several issues in your post, and we will address them one at a time.
    1. Your supervisor can judge your performance on subjective terms, and even terminate you based on these terms. As you know, this is not necessarily good management, but it is fairly common at your level.
    2. It is wise for the employer to require a doctors release to return you to work, but not legally required. Your assertion that you were ready to return to work speaks for itself. You cannot also argue that you were not able to return to work at the same time. (Just so you know, FMLA is up to 12 weeks.)
    3. An employer can take any action against an employee on STD/FMLA that would have been taken anyway, if the employee were not on STD/FMLA. Many, many employees with poor performance use STD as a way to avoid termination. It only works until the employee is ready to come back to work, and sometimes not that long.
    4. The employer cannot fire you BECAUSE you took FMLA/STD, or for work that was undone while you were on leave. That is illegal retaliation and should be reported to the U.S. Department of Labor at However, they can fire you for performance issues that occurred before you went on leave.
    5. Since you feel that this termination is unjustified, and possibly that your boss is targeting you due to your sex, you should consult an attorney about a wrongful termination suit. HTH, and thanks for reading the blogs! Caitlin

  127. Michelle Says:

    Is stress considered a disability if it is related to the job? I know ADA says it may not be but what makes it a disability?

  128. Mary Says:

    I am waiting for the STD to be approved. Hopefully the carrier will approve.

  129. George McMahon Says:

    I have been working for a small printing company in Ohio (less than 50 employees)for 8+ years. In January I was diagnosed with pancreatic cancer. February 24 I had surgery, and with complications I have been on short term disability (paid for through payroll deductions) until now (July 18). When my doctors released me to return to work I immediately contacted my employer and was informed thy were going to retain the temporary that was filling in for me. My performance reports have always been exceptional and I had no previous problems or reprimands. During my illness I maintained contact with other employees and my bosses. They say I failed to give them prior notice of my return but I could not tell them a date until I had one, at which time I immediately went to my workplace to arrange my return. Can they do this?

  130. hrlady Says:

    Hi George,

    FMLA did not apply in your situation since your employer has less than 50 employees. Regardless, FMLA would have only protected your job for 12 weeks.

    Ohio is an “at-will state” meaning that you or your employer can terminate your employment at any time for any reason. Yes, although it seems unfair, your employer can terminate your employment.

    Since you are able to return to work, unrestricted, and your employer has terminated the relationship, you can probably apply for unemployment. Your employer is probably basing the termination on a policy rule, you should contact the Human Resource department for additional information.

    Thank you for reading the blogs!

  131. Greg Says:

    I work for a large corporation.I recently had colon surgery. A LAR procedure and something else pertaining to adhesion I cant recall at the moment. STD approved the first 4 weeks. My doctor submitted paper work to confirm I needed two more weeks off,returning for 2nd post op visit at the end of the two weeks. STD denied the submission from the doctors office. I am still not recovered enough to return. Is it appropriate to request FMLA for the remaining two weeks? Or will the STD denial over ride a FMLA request?
    Tks for any help you can provide.

  132. hrlady Says:

    FMLA should have begun at the start of your time off and it should run until your doctor returns you to work. Short Term Disability benefits run concurrent with FMLA and not prior to FMLA, they are two different types of benefits.

    For example: You began your illness on July 16, 2012. At that time FMLA should have begun and ran concurrent with Short Term Disability. At this point in time you should have 4 weeks of FMLA and 4 weeks of STD. If you doctor is stating you cannot return to work for an additional 2 weeks, then both should be in force until your doctor releases you to return to work.

    I would contact your HR department and ask why STD was not approved for the additional two weeks. Most companies usually follow the doctors instruction.

    Thank You for reading the

  133. missy Says:

    I applied for fmla / std on 8/ 13 , due to severve depression and anxiety. My emplloyer uses Lincoln financial as std provider. For the week of the 13th the doctor wrote me out of work which i took unpaid because i had no sick time left. For weeks 8/20-8/31, he requested on the papers that i only work half time until i see the phychiatrist on the 31st. ,. I can only assume to keep stress levels down, but also to keep me from sleeping all day. What are theodds that the insurance company will offest my hours /pay, as i am a 40 hr non exempt employee. Do they even consider payingreduced hours, or would i have to completley be out. Im scared my doc has messed me up worse than where i started. Its making me even more anxious and cant rest worrying about money.. This is killing me. Id rather not be there at all consideringfor the four hours im there itseems theres whispers and ALL my customers SOMEHOW seem to know everything thatsgoing on in my life, and im petted consitantly. And my coworker stresses me outSO BAD with her constantly complaining that she sooobusy now th tshe has to pick up a little of my work….. ahhhh. Sorry… i got off on a tangent!!
    If you could give me any advice that would be lovey. Id like to know either way so i could sleep.
    Thank you, and ive learned alot from your posts.
    God Bless
    – Missy
    South Carolina

  134. hrlady Says:

    Hi Missy,

    Regarding short term disability, every policy or plan is different. I do know that your employer is obligated to pay you for all hours you do work. The hours you are not working may fall under a partial benefit, however that would depend on the policy.

    Take care and thank you for reading the

  135. Angela Says:

    I was recently terminated from a position I had for greater than 6 yrs due to me being out on first FMLA then STD, I was texted by my boss 3 days after my FMLA ended and was told I needed to contact HR for the cooperation and as I did, I was placed on a 3way call and told eeffective that very day I had been terminated and my health benefits would end in less than 10 days, I am recieving Short Term Disability but my concern is can I consider this wrongful termination and seek legal representation for the action that was taken. I was out on medical leave for a disability under the ADA (bowel related) and now still sick I face this another disappointment and the expensive cost of COBRA Health insurance while the STD is greatly appreciated and needed that is only 60% of my income and cobra takes over 50% of that.

  136. TJean, Ohio Says:

    I am filing for “light duty” due to issues with OA ( per Family doctor and Rheumoatologist). I can still perform the majority of my job duties, but some of the areas I normally would be working are going to be problematic for me (I am a Respiratory Therapist). I am applying for FMLA today, just in case, (intermittent). I received a call from my manager who said they “Would try to accommodate my light duty”. My question is, can they fire me simply because of light duty if I can fully function on some of the units? I have been with the company for 20+ years, and have good job performance appraisals. I have only used FMLA one other time 2 years ago with a kidney stone. I truly feel as if I am being threatened and would like to know if I have any protection or if I should do anything other than what I have done.
    Thanks, TJean, Ohio

  137. Susan Says:

    I am employeed in California and I have had a very unlucky year. In February I was on disability due to being hospitalized for gastro-intestinal problems. I was out for less than a month. Upon my return to work I was out many days due to complications and each time I presented a doctor notes. In May my mother passed away. Days before her death I took some vacation days off and then extended it because she passed during my visit. In all I took a week and a day off 5 of those work days were not vacation time. Then 2 weeks later I had gall bladder surgery and a partial kidney removal due to a cancerous tumor. I returned to work in 18 days. I still have complications and as of September 4th I am out on disability until September 28th. The owner of the company is the person who kept asking if it was possible for me to get the doctor to put me on disability to resolve my health issues. Now 2 weeks into disability I have found that he has posted my job on craigslist. Is this legal? BTW through web programs I am doing some of my job from home without pay.

  138. Chris (Virginia) Says:

    I have been employed with my current company for almost 8 years without any kind of disciplinary action on my record. Last year my company underwent a reorganization and eliminated some key positions in an effort to increase their already 100+ million in profits. Over the last year I had been so overloaded with work and under pressure to be untruthful with clients that I began to have panic attacks and depression.

    I took a few days off sick and went to see my PCP, who then put me on 8 weeks leave from work for extreme depression and anxiety. My employer is covering 8 weeks of leave under STD insurance @ 100% and I am concurrently under 12 weeks of FMLA.

    I have been in therapy with a psychiatrist for several weeks and it has really been helping me. While on the job I had trouble sleeping at night because of worries about the job. My marriage also suffered. I feel guilty about being away from work and I am due to return in two weeks. My concern is NOT being fired upon return but being thrown into the same stressful situation.

    My company offers LTD insurance as well. I was told that I would have to use my vacation time if I am out beyond the 8 weeks covered under STD. I have 2 weeks vacation accrued that would cover me through my 10th week of FMLA. What are my chances of qualifying for LTD insurance if deemed necessary by doctor? If I file a claim for LTD during my FMLA window does that protect me as an employee eligible for that benefit or might I be terminated?

  139. Amanda Says:

    I broke my right ankle in 3 places and had to have surgery on 7/31/12. I was out of work on STD for 2 weeks and returned to work for two weeks. the doctor said as long as i can get a ride to work, and they could accomidate me at work it would be fine. Well I lost my ride to work do to sexual harrasment from the driver and had to go back out of work because i cannot legally drive myself. Doctor allowing me to go back out. I reciently went to the doctors because my cast had gotten wet twice and while i was there they gave me my back to work date. November first 2012 is my BTW date. My question is, can my job fire me for not being able to work/ transport my self to work? I tryed getting my hours changed so that I could ride into work with my mom but my job couldnt “lose a rep at 7pm”, thus me going back on leave. My HR manager said i do not quilfy under FMLA, therefor i am only on STD. I tryed working with my job to change my hours which they were not willing to do, i have kept in contact with them letting them know everything that is going on with me medically. please help!!!

  140. hrlady Says:

    Hi Chris,

    FMLA provides for 12 weeks of unpaid time off for a serious medical condition. During that 12 week period your job is protected. Any time off beyond the 12 weeks is not job protected and you can be terminated.

    If you feel that your situation will worsen when you return to work you can file a claim of disability at this time. If you are approved for the disability will depend on your condition and if it is considered temporary or permanent, your physician, and the company that handles the LTD for your employer.

    You should speak with your physician and discuss your situation.

  141. hrlady Says:

    Hi Amanda,

    Because you are not eligible for FMLA your job is not legally protected. Unfortunately, your employer can terminate your employment at any time.
    You should discuss your situation with the HR manager. You should also present HR with your back to work note, and let them know you want to return to work at that time. It is better to discuss the situation now, rather than worry without knowing the outcome. Your company may be willing to work with you.

  142. Cindy Says:

    I was put on short term disablilty for 12 weeks due to pregnancy complications. I have been released to return to work as of my last doctors appointment. My job is refusing to let me return to work due to the fact that I have restriction and i am unable to drive more than 45 minutes from my home. My home office is 30 minutes away and it was the office i was initially hired to be at and have been at for over a year now. They keep telling me that the only way I can return to work is if I go to the main office to work which is about and hour and 20 minutes from my home and not the office I was hired for, for “training”. This would be against my doctors orders and against the agreement we had when i was hired, is this allowed? I was told to not come in on monday (the day i was cleared to return) and to call and speak to human resourses. I am more than willing and able to return to work, but I am afraid that if something does go wrong that I will not be close enough to get to my doctors office. I feel as if i being forced to choose between my job and the possible health of my child.

  143. linda robinson Says:

    i am out on temp disabilty to severe depression as of july 22 2012 on oct 11 2012 my job called and said they had to let me go but they said it is a layoff and i could reappy for the job when i get better then she said i could collect unemployment the people at my therapy group said to saty on disabilty do not collect unemployment i was planing on going back to work now this happened i am very unsure of what to do. i neeed to see the doctor and go to groups i also need medical threatment for bp and thyroid cond. i was working full time hours but they are saying i was only part yime and they would not give me insurance i asked many times.

  144. Amber Says:

    Hello.. I have been on short-term disability since 8/28. Originally I was supposed to return on 10/8 but my doctor extended it out until 11/16. I am not on FMLA as I have not been with this company for more than 12 months. I found out the other day that they offered my position to somebody else that works there. Because of this I begged my doctor to release me to go back (she still was not comfortable doing so), I go back tomorrow. I know that they do not have to hold my job and can terminate me but can they lower my pay rate and make me do a completely different position. I was hired to do Payroll/AP, could they make me do housekeeping at minimum wage now, and make me work weekends when I was hired to work M-F?

  145. Jennifer Says:

    I was terminated today from my job that I have been with for over 6 years. I went out on FMLA/STD on Tuesday.The reason I went out of work was due to anxiety and depression caused by the manage pulling me into the office to tell me that we may fire you or may not based on some errors that I have made but go back to work for the 2 1/2 hours of your remaining shift. I cried and was emotionally stressed the entire time working and ended up in the ER that night for an anxiety attack. My STD claim was approved prior to my termination but the HR people are telling me that I am not entitled to that or my FMLA that was also approved prior to my termination because there was a break in my 6 years although the thrid party admnistrator of our benefits stated that I am eligible for my 12 weeks at which point I understand that I can be terminated if my employers wishes. Can they hold back my disability payments because of terminating while I was already out on STD?

  146. hrlady Says:

    Hi Amber,

    FMLA requires an employer to return an employee to the same or equivalent position upon return from FMLA leave. Because you were not eligible for FMLA your employer can legally either terminate you or place you in a new position upon your return from short term disability.

    The new position does not need to be an equivalent position as far as hours or rate of pay. You should contact your Human Resource Department and discuss your return to work upon your full release from your doctor.

    Thank you for reading the

  147. Miller Says:

    I have been on leave from my job in nj since June and have exceeded my fmla. They have asked me to release medical records to determine an extension of job protection. But have also said i do not have to release the records under HIPPA but if I do not they will terminate me. How long after fmla do they have to let me know if they will extend my job protection?(fmla ended beginning of Sept) Once discharged will I be eligible for unemployement?

  148. Kari Says:

    I went on leave from my salaried retail job on oct15-2012
    My work has a std threw aetna.
    My doctor took me out due to stress and panic attacks.
    Put me in a intensive out patient therapy is for 10 days also put me on two different medications.
    Yesterday 11/5 aetna called and said they were denying my claim. No explanation was given other then they need my doctor to send more personal detailed notes of my therapy and for me to file appeal.
    Called to ask about appeal letter and was told just explain why dis agree.
    Thanks aetna this is really helping my stress…
    Can someone please help with what I should include in my appeal letter.

  149. hrlady Says:

    Hi Kari,

    It would probably be to your advantage to speak to a claims representative handling your case, in order to give them the correct information. Your physician may need to have additional information, as well, in order to provide the carrier with additional information.

    Work related stress claims are sometimes not handled by a std carrier. You may need to file a workers compensation claim if your physician is stating that your current condition is work related. There is no guarantee however, that your workers compensation carrier will approve your claim.

    Thank You for reading the

  150. Lauren Says:

    I am 7 months pregnant. My employer offers std through metlife for 26 weeks. My doctor just told me I need to go ahead and take std due to complications. I will not be covered under fmla because I have only been at my job for 5 months. Do I have to give any notice when i take my leave or will the doctors note be enough? Also will I be covered under std until the baby is born? And just to make sure, if they were to fire me would i still have std coverage and then qualify for unemployment after i was able to work again?

  151. hrlady Says:

    Hi Lauren,

    You are correct; you will not be eligible for FMLA, because you have not been at your company for 12 months and 1250 hours. However, you will be covered under the Pregnancy Discrimination Act. You need to submit a doctor’s statement to your employer regarding your ability to work. In addition, you will need to submit paperwork to the Short Term Disability carrier, so they can determine if you are eligible for STD.

    Under the Pregnancy Discrimination Act, if you are temporarily unable to perform your job because of your pregnancy, your employer must treat you the same as any other temporarily disabled employee. In addition, your employer must hold open a job for a pregnancy related absence the same length of time jobs are held open for employees on sick or disability leave. You should work with your Human Resource Department on the amount of time allowed.

    As far as unemployment, you should check with the unemployment office in the state in which you live. Normally, you must meet unemployment eligibility requirement for wages earned or time worked during an established period of time (normally one year). Also, workers must be determined to be unemployed through no fault of their own. A normal disqualification for unemployment is that a worker resigned because of illness.

    Thank you for reading the

  152. Christal Says:

    Hello!!! My husband is currently on intermittent fmla, which allows him to take up to 3 days a week. We are currently working on getting his STD approved since his doctor found it necessary to admit him to a 90 day inpatient program. If his STD gets denied, and he cannot return to work, immediately and he loses his job, but is still available to work, can he collect unemployment insurance?

  153. hrlady Says:

    Hi Christal,

    Unemployment benefits are usually awarded to those who are terminated for no cause of their own. Typically, if you quit or are terminated for a medical condition that prevents you from working, then you will probably be denied because you are “unable to work”. To be eligible for unemployment benefits a person must be able and available to seek and accept immediate full time work. If your husband’s medical condition prevents him from working, then he would not be eligible for unemployment.

    Thank you for reading the

  154. Don Says:

    I have been out of work for almost 1 year have been paid thru sick time workers comp time and partial pay by company.I became sick with bipolar. My doc released me oct 29th I went to company doc on oct. 30 have been home since and they stopped paying me but the reason I am home is the company wont release me. Should I be getting paid still since the company is the one keeping me out.

  155. hrlady Says:

    Hi Don,

    Normally, short term disability or sick pay will last for a period of time, either for 6 months or 1 year. However, if you were released to return to work then the disability pay or sick pay would stop. If your illness was work related and you were on workers compensation, when you were released to return to work, your pay would stop.

    You should contact your company for additional information on the status of your employment.

    Thank you for reading the

  156. tory Says:

    I was terminated while out on pending std I am waiting currently for the paperwork to proces, however if it is approved will I be eligible to be paidthe duration of time my doctor had me out until? Or will it just be paid up until I was let go?

  157. andrea Says:

    I have been on leave since 9/29 due to my pregnancy. I took extra time off for baby bonding and was extended now as disability was extended till 1/14 with a possible 4 weeks. Can I be fired?

  158. hrlady Says:

    Hi Tory,

    That would depend on your companies’ short term disability policy. Normally, to be eligible for a benefit provided by your company you need to be actively employed. If you apply for a benefit after being terminated then you are not normally eligible. Most policies state “actively” employed for eligibility.

    However, if you applied for the benefit prior to your termination you may still be eligible for the benefit. Technically, you were actively employed at the time you applied. The final determination will depend on the carrier.

    Assuming you are eligible for the benefit, under those circumstances a waiver is usually issued and until you recover you may receive your benefit. The only disclaimer that could occur would be because of your termination of employment.

    You should contact your former company for clarifications on the benefit, or at a minimum ask for a summary plan description of the benefit. You can also contact the benefit provider for clarification. Every company and/or provider has different benefits and requirements.

    Thank you for reading the

  159. Latoya Says:

    I have been with my employer for 13 yrs, i recently became ill due to the stress and harrasment from my management. i was out on fmla leave for 4 weeks and then had surgery for no related issue which took me out anther 3 weeks. i recently had a relapsed of my stress related illness, and am currently out on 5 week leave. my dr has reccommended that i do not return to work before 01feb13 however, hr recently called me and adv that i will be out of fmla time prior to my released date, which would jeporadize my job. i was told if i do not return to work on their given date, i will be sent a letter stating I am being terminated because i am no longer able to perform my job duties, however i would be rehireable. If i am fired, will i be able to collect unemployment?

  160. hrlady Says:

    Hi Lataya,

    One of the reasons for disqualification for unemployment benefits is being terminated.

    You should speak with your Human Resource Department to see if any other extension of Short Term Disability is available. You may also want to speak to your physician about a return to work, prior to your discussion with Human Resources.

    Thank you for reading the

  161. Matthew A Valentin Says:

    I want to return to work but my company has done a fit for duty evaluation. The evaluation concluded that I was not fit for duty by there doctors. My physiatrist is stating that I am fit for duty and has given me a letter stating that I can return to work with no restrictions. I have been out of work since October and STD did not approve me, stating that I am not disabled due to the doctor reports. Can I lose my job?

  162. Sharon Ruedger Says:

    Sharon Rudger,
    I am on short term disability as I just had a baby- I was approved for 6 weeks, it ends at the end of January, but I was going to have surgery for a tubal litigation before my short term ends-will I get approved for the additional 6 weeks for recovery? And can my company fire me for needing 6 more weeks, I do not have FMLA as I have not been at the company a year.

  163. hrlady Says:

    Hi Matthew,

    An employer can ask for a second opinion by a doctor of their choice to determine eligibility for a return to work, or for an approval of sick, or short term disability.

    If your employer determines that you are not eligible for a return to work based on their doctors opinion, then yes you can be terminated.

    Thank you for reading the

  164. hrlady Says:

    Hi Sharon,

    You should discuss with your doctor the time required for recovery for a tubal litigation. After you receive the information, from your doctor, you should discuss the need for the addition time off with your workplace.

    Normally, a tubal litigation is done at the time of the birth of a child or shortly afterwords, however every situation is different.

    If you are not covered under FMLA, and your employer allowed 6 weeks off for the birth, this would be a additional illness. Your employer can terminated your employment but that is a decision they will make.

    Thank you for reading the

  165. ginger Says:

    I have been on intermittent FMLA for over a year now since I have heart problems as well as diverticulitis. In December I had to have surgery for my diverticulitis and so I went on FMLA and STD. I had complications and had to go back into the hospital for 8 days and it has delayed me going back to work. I know I cannot go back before 02/14/13. As of Jan 30, 2013 all my FMLA will be used up. I have received a letter stating that I will have to go on Cobra to continue my health coverage. I have a call in to my FMLA office, but they have not called me back. tried several times to call them. Does this mean that I will not have a job when my doctor does release me? I called my manager and he was clueless, states I have to call the FMLA office. What can I do?

  166. hrlady Says:

    Hi Ginger,

    Check with the FMLA office for guidance on your particular issue. Typically, an employee is eligible for FMLA up to 12 weeks of unpaid leave in a 12 month period. If you worked at least 1250 hours last year while you were taking intermittent FMLA you may be able to renew your entitlement for this year. If you did not work the 1250 hours, your position will not be protected under FMA.

    If you cannot contact the FMLA department please contact someone in the Human Resource office who can help you.

    Thank you for reading the

  167. Mike Says:

    I was on disability during most of the beginning of 2010 in which the insurance adjuster made thing very stressful for me nonstop. I tried coming back to work, but I was denied by the occupation doctor. I found out later on my short term coverage was closed while still seeking medical treatment in which thinking that I was terminated, but not. Without my knowlegde or without a written notice, the company ended up putting me on FLMA leave which pretty soon ended my employment. My question is do I rights to sue both my former employer and insurance company for the drama that they put me though

  168. hrlady Says:

    Hi Mike,

    Certainly, anyone has the right to sue anyone. However, with that said, it would be very costly for you and you will probably not win.

    The majority of companies in the United States follow strict rules set forth for doing business in the US and employing employees. Companies are not afraid of lawsuits because typically the rules have been followed and documented. In addition, companies carry insurance in case they are sued and have employment lawyers that are paid well to win a suit.

    If you do decide to sue the employer be prepared for a long battle it will be emotionally and financially exhausting. You will have to pay a costly retainer, investigations, depositions and you and your family will be scrutinized.

    Thank you for reading the

  169. Vickie Says:

    Hi Caitlin
    I worked for a major wireless company for five years. In 2009 I started having medical issues. I have fairly rapidly diagnosed with two disabling diseases which both include chronic pain and chronic fatigue. I was unable to work for several months and was approved for fmla and several std leaves. I then began rx treatment which resulted in remission for both conditions: connective tissue disease and fibromyalgia. I worked for a year without any absences. Then due to concern for side effects for the steroid meds I was weaned from this med and almost immediately became too ill to work. I was once again approved for fmla and std leave. I also suffer with osteo arthritis and other issues and had been tentatively diagnosed with carpal tunnel syndrome. Extensive testing revealed carpal tunnel did not exist. Once the medical information provided to my employer indicated my pain and fatigue were not caused by carpal tunnel my employer stopped approving my std, demanded I return to work. For fear of losing my job I requested my doctor release me to return to work. After only a few short weeks I was again in too much pain to work. The final determination was the pain was caused from my fibromyalgia. Std leave was denied and I was terminated. The letter my company sent to terminate me did not specify reason for termination. This was in December of 2011. I was very sick at the time and just did not know what else to do to try to save my job since the company was not accepting the medical information I provided to approve a std leave. Just recently I became aware of ADA laws which could have helped save my job through accommodations for unpaid leave or for a modified work schedule. Since I was not aware of these provisions in the ADA law at the time and no options were offered by my employer is it too late to file a complaint or attempt to get my job back? I am 56 years old and with the high unemployment rates I have not been able to find another job. I am currently a year and 3 months into the process of application for social security disability. I am waiting for a hearing date. I am desperate as I have no income and have gone through all of my savings. I would appreciate any insight. Thank you!

  170. hrlady Says:

    Hi Vickie,

    You can contact the Equal Employment Opportunity Commission or call the national number at 1-800-669-4000 and speak to them about your issues. Typically, the illness you describe does not automatically qualify you as disabled. Therefore a discussion with them at the time you were employment would have been more appropriate. However, the company that employed you does not have to provide accommodations if it creates undue hardship for them. A lot of confusion may have occurred with the different types of illnesses going on.

    You may want to contact your county assistant office for some help with your current financial situation.

    Thank you for reading the

  171. Queenie Says:

    I was out of work from November 20 to Jan 6. Std claim was still pending. Had no income support so I had to go back to work. I went back to work on Jan.26 from full time to part time light duty under fmla. Since I am still testing my meds and still need therapists treatment. How can I claim or appeal from jan 6 til april std benefits?

  172. hrlady Says:

    Hi Queenie,

    FMLA only allows 12 weeks of unpaid leave, job protected leave per year. If you have used your FMLA you will not be able to apply, you should speak to your Human Resource department. They can advise you of the method they use and when you can apply again.

    As far as STD, it depends on the STD policy in your company as to the length of time allowed. Some policies run for 13 weeks, others can be up to 6 months. Again, you should speak to your Human Resource Department.

    In all cases it is your doctor who dictates if you can work or not. If you are unable to work, you should speak to your doctor.

    Thank you for reading the

  173. anita Says:

    Hi I live in Oregon. I work for a large hospital and was hurt on the job 9 months ago. My 1st Dr. said I had a sprain,workmans comp payed for this. It never got better and 1st Dr. said I was fine. Went to 2nd Dr. and had an MRI which found a slap lesion that needed surgery. During all the time I was hurt I was on light duty.(less hour and limets) When I told HR I was going to have surgery they no longer had light duty for me so I was off work all together. They also told me that since my partner was not the same sex as me they were taking away the FMLA I had for him for the last 7 years!. I had the surgery but the surgeon found I had two slap lesions a 2 and 3 plus tears in rotater cuff. Needless to say I can not do my CNA job but must do light duty which the Dr says I can with restrictions. My Surgeon says my injury happened at work and has made a formal statement to the fact. My Fmla is up in 3 days. Now HR wants me to file for a 30 day leave, on this form it states that I know that if I can not come back at the end of 30 days I voluntarily quit my job. I cant sign this knowing that I will not be healed for another 6 to 9 months. I will have Dr note to this fact. My Hearing for workmans comp is in 5 days. If I win my hearing will my work have to reinstate me and give me a job when I am released for full duty?

  174. hrlady Says:

    Hi Anita,
    It appears that you have a few different issues going on here.
    The first issue is the workers compensation, if the injury was approved and paid for, then workers compensation pay should continue until the injury is healed, per your doctor. It appears that you state your injury will be healed in 6 to 9 months, but that will depend on your doctor.
    The second issue is FMLA; you are entitled to 12 weeks of unpaid leave per year. If you are unable to obtain a release to return to work from your doctor your employer can terminate your employment. It appears that your employer is offering you a 30 day leave (on top of the 12 weeks of FMLA), which is typical. If you are unable to return to work after the 30 day extended leave your employment will be terminated.
    The third issue is the FMLA for your partner, which is unrelated to your own injury or illness.
    If you do not take the 30 day extension of the leave, your employer can terminate you following the expiration of FMLA. You should take the additional 30 days and hopefully your health will improve.
    Thank you for reading the

  175. Mark Says:

    I have an employee on FMLA, she was to return on Dec 2 (end date). I did send her a letter of indicating the expected date of return. To date I have not received any responce from her or showed up for work. Do I need to make further attemps or can I start the termination process for Job abandunment? Do I need to notify her of termination, and if so should termination letter be sent certified mail?

  176. hrlady Says:

    Hi Mark,
    It’s in your best interest to make further attempts to contact her. It’s usual to send the employee a follow up letter reminding her of the return date and consequences for not returning to work ie termination for job abandonment. It’s also good practice to inform the employee of her options such as resigning, returning to work, or applying for a personal leave (if this option is available). Send the letter certified mail to ensure the employee receives it. If you’ve already done this a quick phone call would be generous; though some may think doing so is overly generous. If the employee doesn’t communicate with you within a few days after receiving the letter termination is warranted. It’s recommended to send the employee a letter via certified mail stating that since no communication has been received her employment is being terminated for job abandonment. It’s also important that you follow the same procedure with every employee who doesn’t return from leave on the assigned date.

  177. Benefits Says:

    Our company offers voluntary STD (6 months worth after 15 days off) and LTD (kicks in after being out 6 months) that the employee can pay for themselves. Employee is paying for STD & LTD voluntarily. If the employee goes out on FMLA and starts receiving their STD benefits and it is determined that the employee is likely not going to be able to return to work for a total of a year. The company grants an additional 30 days of leave and then terminates the employee since they will not be able to return to work for a long period of time. In the employee’s separation notice they are notified that the STD and LTD benefits will terminate upon the employees termination. Is this legal/allowed? How would the employee ever be able to collect all of the STD benefits or any LTD benefits if the benefits terminate when the employee is terminated. This seems deceptive.

  178. hrlady Says:

    Carefully review the STD and LTD plan documents to ensure coverage is dependent upon employment. Often, such benefits are not tied to employment since, like you say, offering employee paid STD/LTD wouldn’t necessarily make sense if an employee could be terminated from both employment and the plan before using the benefits. If STD/LTD benefits do coincide with employment, which is possible, then it’s in the employer’s best interest to notify employees of such during the enrollment process to avoid future issues. HTH.

  179. Jess Says:

    Hi- There is currently an employee who is out on short term disability that has been out since the beginning of October. She had surgery. She was supposed to return the beginning of January. On 12/19 the dr wanted to keep her out of work until 1/27. On 1/27 she went to the dr and he put her out until 3/3. WIth this being said, her manager had stated to me several times that she could not wait for this employee to return. The business was suffering and we were losing patients. Additionally, the employee’s dr stated she could only return part time and could potentially become full time again. This was discussed with the employee on 1/29 with myself and her manager. The employee wanted to follow up with her dr. On 1/31 I called the employee and left a message following up to the conversation on 1/29 and that her manager needed me to start recruiting to find a full time replacement for her. Her manager and myself encourage her to contact us when she was able to return to work to find out if there were any available positions for her, but currently we needed to do what was best for the organization.
    I do not agree with the manager’s push to replace the employee, I would have rather brought the employee back, but was a little frustrated that the dr kept extending her time out. I also understand the manager’s point of view.
    Are we legally ok in this situation? I will be making one more phone call with the manager to the employee tomorrow to make sure she understands her employment has been terminated. I will also follow up with a letter. Is there a good letter I can send her?

  180. hrlady Says:

    Hi Jess,
    You don’t mention if the employee is/was on FMLA leave. If the employee failed to return from or exhausted her FMLA leave then you have a basis for terminating her employment. The federal Americans with Disabilities Act doesn’t require employers to make accommodations for or offer leave to employees with short term or temporary disabilities. Some employers chose to make such accommodations when an employee has a date in which he will be able to return to work or the accommodation is not a burden for the employer. The extended effort is most often to avoid the potential of a discrimination claim. Assuming the employee isn’t eligible for FMLA or has exhausted her leave termination is permissible. Unfortunately, I can’t propose a letter without knowing the details surrounding FMLA entitlement. Basically, inform the employee that per your discussion with her the company has made reasonable attempts to keep her employed but due to continued absences her employment is terminated. Include that she is encouraged to contact you once she is medically cleared to return to work to discuss employment opportunities that may be available. HTH.

  181. Thomas Says:

    I am a business owner of a small business (less than 50 employees) in Texas. I have a manager that is late frequently (well over 50% of the time). He has an illness that makes it difficult for him to arrive at the agreed upon time. Having said this, he is rarely absent for an entire day.

    It is critical to his job performance that he arrive on time to provide direction and leadership for his team prior to them leaving on their scheduled calls.
    Needless to say, I am unhappy with his individual and department’s overall performance and would like to terminate his employment. I fear that this employee may file a lawsuit due to his illness.

    Please understand that we want to treat all of our folks in a fair and equitable manner. I have had numerous conversations with the manager detailing his underperformance. I have worked with him on identifying his shortcomings as well as formulating a plan for improvement. Regretfully, there has been no improvement and I believe that his poor performance is tied, in large part, to his excessive tardiness.

    Your thoughts on this situation and any feedback would be greatly appreciated.

  182. hrlady Says:

    Hi Thomas,
    The employee’s illness may be a covered disability under the ADA. The Americans with Disabilities Act (ADA) covers employment by private employers with 15 or more employees and prohibits discrimination against an individual who can perform the essential functions of his job with or without reasonable accommodation. A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified employee with a disability to perform the essential functions of a job. Reasonable accommodations can include job restructuring, reassignment, or modified work schedule. It is a violation of the ADA not to provide reasonable accommodation to a qualified individual with a disability, unless doing so would impose an undue hardship on the operation of the business. Undue hardship means that the accommodation would require significant difficulty or expense.

    The ADA requires an interactive communication process between employer and employee to discuss reasonable accommodations. Thus, if the employee’s condition is covered under the ADA, it’s best to have a documented discussion with him regarding possible accommodations.

    If the employee’s condition is not covered or there are no reasonable accommodations feasible, following a progressive discipline procedure is recommended. Since there have been numerous discussions with the employee regarding his poor performance consider meeting with the employee one more time as a final warning. Inform the employee of his continued poor performance, this is his final warning and continued performance issues will result in termination. If the same issues continue, termination would be warranted. Be sure to document all attempts to counsel the employee and the ongoing performance issues.

  183. lisa Says:

    I have a lady out & she is getting disability pay. She had to have surgery. She is salary and wants to come back starting out partial days and work up to 8 hours. she said she can get a note from her doctor, Can she come back to work with a partial release? or does she need a full release?
    Note: we only have like 42 employees, so we don’t have FMLA.

  184. hrlady Says:

    Hi Lisa,
    Sorry for the delayed response! Whether an employee can return to work with partial release depends on the nature of her job. If she can perform her job responsibilities on a part time basis and has medical clearance to do so then she should be allowed to return. Even though the FMLA doesn’t apply in this situation, the ADA (Americans with Disabilities Act) may. If the employee has a covered disability, you’re required to provide reasonable accommodations that allow the employee to perform her work duties. Returning the employee to work part time may be considered a reasonable accommodation. HTH!

  185. John Z Says:

    If a person is on concurrent FMLA and STD and supplies all required FMlA documents. However, the Insurance STD carrier denies the STD claim. Can this person lose their job?
    Or is that person still protected under FMLA? Assuming they are way under the 12 weeks.

  186. hrlady Says:

    Hi John, FMLA provides protected leave and job reinstatement rights. STD is just a wage replacement benefit. So, as long as the individual is on approved FMLA leave, he is entitled to job reinstatement.

  187. James Says:

    I am an employer with slightly over 50 employees in California. It used to be less than 50 until the end of last year. Anyway, I have a question pertaining to employee on disability leave. If an employee who is on leave due to total permanent disability and expects not to return to work ever, on what condition am I able to terminate him/her? That is of course after the employee has used up 12 weeks under FMLA and complied with all ADA requirements. Would you possibly tell me on what grounds I can terminate the employee complying with the law?? Thank you.

  188. hrlady Says:

    Hi James, Once the employee’s FMLA leave entitlement is exhausted, reasonable accommodations under the ADA must be considered such as an extended leave of absence. (It sounds like you’re already considering this) An indefinite leave of absence is not considered a reasonable accommodation. If there is medical evidence that shows the employee will not be able to return to work in the future at all, then an indefinite leave would be unreasonable and termination most likely warranted. The reason for termination would be the employee’s inability to return to work in the future. It’s important to mention that the burden is placed on the employer to initiate a good faith exchange of information with the employee and request the information needed to make an informed decision. Basically, don’t just assume the employee will never be able to work again. Make sure you have the documentation that says so.

  189. Morty Says:

    I believe I know the answer but…can a Wisconsin employee at a private company be written up for excessive absenteeism every time she uses her intermittent FMLA. Assuming she follows proper procedures and has not exceeded the approved leave amount. Thank you.

  190. hrlady Says:

    Hi Morty,
    No, an employee cannot be disciplined for exercising her rights under the FMLA. However, if you suspect the employee is abusing intermittent FMLA leave then you may consider requiring a recertification. Requesting recertification is limited but doing so is permissible if you have sufficient reason to believe the circumstances described in the initial certification have significantly changed (i.e. the duration or frequencies of the absences have changed), or you have reason to doubt the employee’s need for the absence or the validity of the certification. As part of the recertification process, employers are permitted to provide the physician with a record of the employee’s absences to confirm the need for leave is consistent with the pattern. HTH!

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