Human Resource Blog

FMLA & STD-Part 2

I need clarification about the advice given to me earlier. Can an employee legally refuse FMLA and/or short-term disability? One of my employees that is currently off with a serious illness says she does not want to take FMLA or STD. She said she currently has STD from her husbands employer. Do we have any further obligations to her if she does refuse FMLA and STD? As her employer should we not be the primary STD provider. I was not sure if employees could have a primary and secondary STD provider.

The company we have our STD with said typically employers terminate employees when they file a STD claim. I don’t think that is legal-am I correct? Do we have to keep her on as an employee?

Yes, an employee can legally refuse both FMLA and short term disability. An employee might do this because they want to be terminated (and possibly because they want to collect unemployment after STD, rather than return to the job.)

FMLA requires that the employee be given up to 12 weeks of unpaid, job-protected leave. However, if the employee refuses to complete the paperwork for FMLA, she can be terminated for excessive absenteeism. Usually when an employee applies for STD the employer puts them on FMLA automatically.

Apparently both your company and the employees husbands company offer short term disability insurance. Which company pays the benefits will depend on the way each individual policy is written. Which company pays the STD benefits is really not your concern. If you suspect that the employee is committing insurance fraud, then many states have a hotline where you can report it. However, that does not seem to be the case here.

If you value this employee and want her to return, (or if you simply want to avoid paying unemployment benefits) you can put her on FMLA simply by notifying her that she has been approved for FMLA and that her job will be there in 12 weeks. It would then be up to the employee to quit, if she does not want the job.