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Apr27

FMLA & STD-Part 2

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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.  

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8 Responses to “FMLA & STD-Part 2”

  1. FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update April 29, 2009 Says:
    April 28th, 2009 at 6:14 pm

    […] » FMLA & STD-Part 2 Human Resource Blog By Caitlin 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. … Human Resource Blog - http://www.humanresourceblog.com/ […]

  2. Fred Zieler Says:
    December 24th, 2009 at 7:35 pm

    Cool, there is actually some great ideas on here some of my subscribers may find this relevant, I will send them a link, many thanks.

  3. Caitlin Says:
    December 25th, 2009 at 7:27 am

    Thanks Fred!~ Caitlin

  4. Registry Spyware Says:
    April 16th, 2010 at 2:34 am

    Good facts, many appreciation to the writer. It is incomprehensible to me now, although in general, the usefulness as well as connotation is overwhelming. Thanks again and good luck!

  5. Caitlin Says:
    April 16th, 2010 at 9:05 am

    Thanks for reading, Registry!~ Caitlin

  6. Bobbi Says:
    August 2nd, 2010 at 4:37 pm

    Is invitro covered under FMLA for both husband and wife who are employees?

  7. Caitlin Says:
    August 2nd, 2010 at 10:04 pm

    Hi Bobbi! This is a complex issue. Let me do some research and get back to you on it. HTH, and thanks for reading the blogs!~ Caitlin

  8. Caitlin Says:
    August 8th, 2010 at 11:01 am

    Hi again Bobbi! Thanks for your patience. We checked with our panel of experts, and here is the consensus:

    Although infertility is a disability under ADA, IVF or In Vitro Fertilization is not necessarily a serious health condition under FMLA. Therefore, the employee might be entitled to unpaid time off under ADA for treatment, but her husband is not entitled to unpaid time off under FMLA because his wife does not have a serious health condition.

    The FMLA definition of a serious health condition usually includes hospitalization overnight or a period of incapacity (3 days or more) plus contuning treatment. There is usually no 3-day incapacity associated with infertility or IVF. (Pregnancy is always a serious health condition, but treatments to achieve pregnancy are not.)

    However, the wife might have an underlying serious health condition that would qualify her for FMLA.

    At any rate, it is not the employers responsiblity to determine if a condition is a serious health condition under FMLA — the doctor determines that. The best bet would be for the employer to give the husband the FMLA certification forms, and let the doctor complete them. Then based on the doctors answers,the employer can determine if he qualifies for FMLA or not. HTH, and thanks for reading the blogs!~ Caitlin

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