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Nov09

Eliminating Employee’s Position while on Short Term Disability

I have an employee who is on short term disability and he has been uncooperative with the short term disability people by not responding to their calls and letters. His Dr. is now not responding. He is playing phone tag with HR. His job now is being eliminated and I need to know what I can do in regards to terminating him?

Prior to terminating an employee on short term disability (STD) leave, the employee’s entitlement to job protection must be considered.

Does your STD plan or company leave policy guarantee the employee a specified amount of leave time with job reinstatement rights?

Does the employee qualify for federal or state mandated leave such as leave under the federal Family & Medical Leave Act (FMLA)?

Is the employee’s condition considered a disability under the federal Americans with Disabilities Act (ADA)?

Feel free to review our previous posts for specifics regarding coverage eligibility under the FMLA or ADA.

Now, even if you answered yes to these questions the employee’s position can still be eliminated but doing so increases the risk of a wrongful termination claim.

Generally, an employee’s right to job reinstatement while on leave under either the FMLA or ADA laws is no more so than if the employee had been continuously employed and not taken any leave. The employer must be able to clearly show that the employee’s position would have been eliminated if the employee never took leave.

It’s important that the decision to eliminate this particular employee’s position isn’t due to him being difficult in communications regarding his leave. You must be without a doubt able to prove the decision to eliminate this employee’s position was non-discriminatory. So, make certain you have concrete evidence to show a valid business related reason why this employee’s position was selected over anyone else.

If you decide to proceed with the termination, make sure your reason and supporting evidence are clearly documented. Also, be clear with the employee that his position is being eliminated. Refrain from making any comments regarding the issues with his application for STD benefits.

This entry was posted on Monday, November 9th, 2015 at 2:39 pm and is filed under
Human Resources Management.
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