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May20

Terminating Employee on STD

We have 8 employees in the US (in CA, NC, NY) so no FMLA. One of our employees, located in NC is on STD (only for a month), paid by the insurance company according to company policy that was established a month ago for the first time. We would like to dismiss him upon his return, as his role is no longer needed and we are interested in closing the NC office. We will leave 3 employees that will be working from home and start hiring in NY instead. The termination has nothing to do with his STD. Can we terminate his employment when he is back? Thanks!!

Although the employee may have job protection under the company STD and/or personal leave policies, he is not completely exempt from being laid off. This is true even if the employee was on FMLA leave as long as the reason is not related to the leave in any way.

The decision to layoff the employee must be objective and business related. If this employee was the only one being laid off it would be best to have solid criteria validating why this specific employee was selected. But, since the entire office is being closed it’s clear the layoff reason is business related and not because he took leave or has a disability. Remember, it’s the employer’s responsibility to prove that a layoff was nondiscriminatory and that the employee would’ve been laid off whether he was on leave or not.

Some employers prefer to wait until an employee returns from leave before laying them off in an attempt to avoid a discrimination claim. However, doing show doesn’t totally protect the employer. The evidence proving the reason to lay off the employee was truly business related is the best way to avoid and defend against a discrimination claim.

Thus, it’s best to separate the employee once the decision to lay him off has been made. The more time between the two the more likely the validity of the layoff will be questioned.

This entry was posted on Saturday, May 20th, 2017 at 6:22 pm and is filed under
Termination.
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