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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