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We have an employee out on medical leave. She has received a letter stating her position with is being eliminated. It states that she can apply for any position within the company, take early retirement or as of Oct 31st take a severance pkg due to the position being eliminated. Now, after the 12 weeks of FMLA her Dr states she can not come back to work yet. Does she get STD? Can the company fire her since they have offered her an early retirement / severance pkg? If she goes bk to work can they fire her even though they have offered her these options?

Leave taken under the Family & Medical Leave Act (FMLA) is job protected. STD and LTD plans are wage replacement benefits. They don’t necessarily entitle the employee to job reinstatement. Whether or not an employee is entitled to STD benefits is dependent on the employer’s past practice/policy and the STD plan eligibility.

It sounds like the employee has a position with the company until October. So, if the employee would normally be entitled to STD, meaning if her position wasn’t being eliminated she could apply for STD, then it’s best practice to allow the employee to apply for STD coverage now. You don’t want to be perceived as discriminating against the employee due to her medical situation. Thus, it’s important to follow leave of absence policies or established practices in this situation even if the employee’s position will eventually be eliminated.

Otherwise, once the employee’s FMLA leave entitlement is exhausted, termination is usually acceptable. However, if her condition is considered a disability under the Americans with Disabilities Act (ADA) she may be entitled to an accommodation such as additional unpaid leave. Again, it’s best to follow the same procedure as you would with any other employee in this situation.

If the company doesn’t have a leave of absence policy, the employee has exhausted her FMLA leave entitlement and she is not entitled to a reasonable accommodation under the ADA, she may be terminated. Now, since she’s been offered a separation package it’s good practice for the employer to set a deadline of which the employee must select an option. If no option is selected by the deadline then the employee forfeits her rights to the offers.

This entry was posted on Thursday, April 23rd, 2015 at 7:31 pm and is filed under
Benefits, Labor Laws, Termination.
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