LTD CONT'D OR TERMINATION

pattyo · September 2003

We do not have a policy as to when and if we can terminate an employee when out on LTD benefits. We have an employee who has been out on disability for 8 months. We do not meet FMLA criteria. We will need to hire someone at this point to fill her position as she is still out unable to do her job. When and if she is ready to return we may not have a position available for her. Can we terminate her now without risking a lawsuit? This is a first for me.

cthr · September 2003

LTD does not necessarily end when the employee terminates. We had an employee on STD retire and not only did they continue to recieve STD, but LTD kicked in after 26 weeks, the explanation that I recieved from our carrier was that this would continue until the doctor stated they were no longer disabled. Check with your carrier.

Betty I_O · October 2003

The employee's personal situation concerning LTD will continue to be reviewed by your carrier for that benefit. Termination of employment will not, in and of itself, affect the employee's long-term disability benefits. The employee was disabled and an LTD claim filed before termination. However, that employee must continue to follow instructions from your LTD carrier, such as submitting medical evidence of continued disability at regular intervals, etc.

You have been more than generous with this employee. You certainly can terminate her. What you want to establish for the future is a policy with a uniform termination point for all LOA's.

pattyo · October 2003

Thank you soooooo much. You confirmed what I thought I knew! We are having to fill her position and as of yet haven't terminated her. She is very defensive in her thinking that we must hold open her job for her.

If she is released by her doctor to return to work, her current position will not be available. What is our obligation under ADA at that point? If we offer another position that would be in a lower pay scale than what she is at are we obligated to maintain her current pay or adjust it? And if nothing is available? Thanks.

SMace · October 2003

Have you talked to her about when she could come back and/or what her prognosis is? If she has a qualified disability a reasonable accomadation may be allowing her another month off. You've already allowed eight months, what's nine months. At least that is what a jury could think. Talk to her about the future and if she cannot come back in another x months determine if that is an undue hardship and if it is term her employment. Realize you will set a precedent you must follow.

LindaS · October 2003

I agree with SMace - by waiting 8 months without trying to find out WHEN she can return to work you may have set a precedent that you will need to follow in the future. Before terminating her I would have a meeting with her to determine IF AND/OR WHEN she may be able to return. If she provides medical documentation that she only needs another month, terminating her now may be the wrong thing to do since you have already waited 8 months. If, however, her physician is not able to give you a timeframe, I would be more comfortable with terminating her employment and suggesting she reapply after she has healed. An indefinite LOA has not been viewed as a "reasonable accomodation" by the courts.

One last thing, as the others have stated, her employment status at this point should not affect her LTD benefits.

LTD CONT'D OR TERMINATION

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