Terminating employees who are on Short term Disability

[sritchie]

Jurisdiction

Illinois

Hi.
I am the HR person for a nonprofit with less than 50 employees. Because of our size, and as outlined in our policy handbook, our employees are not eligible for FMLA.

We have 2 employees who are currently out on short-term disability for injuries and illness that are not work-related. Both have open-ended SDI claims, meaning no return date has been set.
Both have documented performance issues predating their SDI dates.

My questions:
1) Can we terminate them during their leave?
2) If so, what kind of documentation should we have to protect the org from a lawsuit re: wrongful termination?

To be clear, the plan is to terminate these employees at some point. The question is whether we can do it now, or if we need to wait until they return to work.
Thx.

 

[cbg]

STD benefits do not provide any job protection - only FMLA does that. While there are a few states which, under some circumstances, require a longer medical leave than is provided by FMLA, IL is not one of them. So yes, there is nothing whatsoever that will prohibit you from terming their employment. It is unlikely in the extreme that they would be able to come up with any viable claim for wrongful term, since their jobs are not protected.

How long have they been off work?

 

[sritchie]

STD benefits do not provide any job protection - only FMLA does that. While there are a few states which, under some circumstances, require a longer medical leave than is provided by FMLA, IL is not one of them. So yes, there is nothing whatsoever that will prohibit you from terming their employment. It is unlikely in the extreme that they would be able to come up with any viable claim for wrongful term, since their jobs are not protected.

How long have they been off work?

One employee out for 3 weeks, not slated to return for another 3.
Other employee out for 2 weeks, not slated to return for another 5.

 

[sritchie]

Thanks for the back-up/explanation.

 

[hrforme]

agreed... STD is just income replacement not job protection.

Couple of other things to think about:
(1) do either situations rise to the level of an ADA disability such that time-off was a reasonable accommodation at the time? If so you would need to prove undue hardship now when it wasn't at the time the STD/leave was granted. ADA has lower employer eligibility than FMLA. But not all injury/illness rises to the level of ADA-coverage and the employee would have had to request it (whereas under FMLA the employer is the responsible party) - so this point may not be relevant

(2) You could choose to do a release of any claims/waiver with some type of severance payment for a little more protection, but it isn't absolutely needed. You do have to pay attention to ADEA (age discrimination issues) if you do a waiver for them though. So it might be more trouble than the protection the employer gets.

(3) Are you currently continuing their health coverage? Is the employer paying any part of it? Because part of that #2 payment might be used for COBRA payments for their health insurance for the month or two if for some reason you are currently covering a portion of it while they are currently out on STD (even if you don't legally have to do so). This puts them in more of a "same" financial position while they are unable to look for other work due to their injury/illness.

 

[sritchie]

agreed... STD is just income replacement not job protection.

Couple of other things to think about:
(1) do either situations rise to the level of an ADA disability such that time-off was a reasonable accommodation at the time? If so you would need to prove undue hardship now when it wasn't at the time the STD/leave was granted. ADA has lower employer eligibility than FMLA. But not all injury/illness rises to the level of ADA-coverage and the employee would have had to request it (whereas under FMLA the employer is the responsible party) - so this point may not be relevant

(2) You could choose to do a release of any claims/waiver with some type of severance payment for a little more protection, but it isn't absolutely needed. You do have to pay attention to ADEA (age discrimination issues) if you do a waiver for them though. So it might be more trouble than the protection the employer gets.

(3) Are you currently continuing their health coverage? Is the employer paying any part of it? Because part of that #2 payment might be used for COBRA payments for their health insurance for the month or two if for some reason you are currently covering a portion of it while they are currently out on STD (even if you don't legally have to do so). This puts them in more of a "same" financial position while they are unable to look for other work due to their injury/illness.

This is SUPER helpful.
A1) I don't believe either situation is covered by ADA, since they are not ongoing issues but short term issues that appear to require 100% absence from work. I believe we could also provide reasonable evidence of hardship, since one person is a manager and the other has special certification that no one else has. So while they are out, their case loads and the loads of their team members are backlogged. We are also not being reimbursed for work they needed to get done, so we are dealing with financial hardship as well.
A2) Age discrimination would not likely be an issue in this case, but its the first I'm hearing of it. Can we offer each a severance without being at risk in an ADEA situation? One person is over 40, the other is not.
A3) We've been told by our insurance broker that our health insurance contract requires us to terminate employees after 30 days of unpaid leave. I suppose we could offer an additional 30 or even 60 days of medical coverage as part of the severance.

Thank you so much!

 

[txls]

Just to be clear, your insurance company cannot dictate that you terminate someone's employment. I'm sure what they meant is for you to terminate their coverage, since insurance will only cover full-time employees. However, IF you wish to keep them employed you could switch them to COBRA.

 

[sritchie]

Just to be clear, your insurance company cannot dictate that you terminate someone's employment. I'm sure what they meant is for you to terminate their coverage, since insurance will only cover full-time employees. However, IF you wish to keep them employed you could switch them to COBRA.

Ah, thanks.
I realize these questions and comments seem uninformed. I'm not an HR person by training, but took over the function when I moved to this organization. We are a small NPO and have very few administrative staff.
My soapbox: This is what happens when people don't want to fund "overhead."

 

[txls]

No worries, I learned a lot after I got the job, much of it on this forum!

 

[hrforme]

I too am an "only " HR person in my org, but did have some past experience, but have learned a lot and also by reading this and other HR/payroll forums and answering other's questions..... So please don't feel bad about asking questions!

 

[army judge]

We all learn from others.
No shame in that, as that's how it's been done since our ancestors appeared on this planet.

 

[ElleMD]

If you are terminating for performance, I'd rip the band-aid off now. Assuming it was all well documented ahead of time and the employee just happened to go out before you could act, it makes little sense to keep them on for months only to terminate once they return. It can also come back to bite you in ways you never imagined, which I learned the hard way.

As a totally humane gesture, I would make sure the person is in the healing process and capable of understanding what is going on. You don't want to be the employer who fires the guy by letter while he is in a coma, or laid up in ICU.