The employee has been out on short-term disability for fifteen weeks. The disability is due scoliosis and she was placed on leave by her chiropractor. She is vague when I ask when she will be released or when she will be returning. She just says “Whenever he releases me”. The last APS indicated “Not able to return back to work – sitting or standing still too painful work/activity”. She is an LPN in a five-physician practice and of course has been replaced. Can she be terminated since the short-term disability has exceeded 12 weeks? The office policy states the duration depends on applicable laws and regulations of the Federal and State governing agencies. We are located in Tennessee.
This will depend upon who is providing the short term disability benefits — the employer or an insurance company — and on whether the employee was entitled to FMLA.
When short term disability benefits are provided by an insurance policy, they are unrelated to continued employment. Some STD policies provide 26 weeks or even 52 weeks of benefits. However, after collecting STD for 52 weeks, the employee would not have a job to return to. In many cases, even after collecting STD for 13 weeks or less, the employee would not have a job to return to.
When an employer provides short term disability benefits, there is an implied promise that the employee will be returned to the job when the benefits end (unless the employer has a written policy to the contrary.) After all, employees generally do not provide benefits to ex-employees — only to current employees. So an employer who provides 20 weeks of STD is implying that the employee can return to a job after 20 weeks. Again, if the employer has a different policy, it should be specifically stated in the handbook.
Tennessee has a family leave law at the state level, but it applies only to new parents, so it is not a factor in this case.
If the employer has 50 or more workers within 75 miles, the employee is entitled to 12 weeks of unpaid, job-protected leave under the federal FMLA, the Family and Medical Leave Act. That law requires the employer to inform workers of their rights under FMLA within 5 days of any absence that could be covered by FMLA. If FMLA applies in this case, and you have not informed the employee of her rights under FMLA, she may be entitled to an additional 12 weeks of leave.
Short term disability leave can run concurrently with FMLA, and usually does. If the employee has exceeded her 12 weeks of FMLA, and is unable to return to work, in many cases she can be terminated. (If she was not covered by FMLA, she could have been terminated after 4, 6 or 8 weeks of absence, in accordance with company policy.) Note that merely being on STD does not necessarily mean the employee is also on FMLA. As an employer, you must specifically designate the time as FMLA.
If the employee has a permanent disability under ADA, she may be entitled to additional time off as a reasonable accommodation. That law applies to employers with 15 or more workers. Otherwise, if the employee has exhausted any FMLA and cannot return to work, you can terminate her in accordance with company policy.
Be aware that if you have allowed other employees to take more leave, then it may be illegal discrimination to terminate this employee.
The employee handbook is intentionally vague. Despite that, you should formulate an internal policy that defines how much time an employee can take off and still be returned to the job — perhaps 6 weeks or 8 weeks of medical leave if FMLA does not apply. If your company is covered by FMLA, you should include an FMLA notice in the employee handbook.
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