Can you be terminated while on Short Term Disability?

[Rob88]

This is in Texas. Wife's work requires her to be on her feet and has been employed for the same employer for over 10 years. She had an accident away from work that broke her leg and knee cap, making her not able to walk for a while.
She went on short term disability. She has just recently started physical therapy and getting some injections in her knee.
Her manager has talked to her almost weekly, but today started out friendly and then turned on her saying she may not have her job much longer and that she can be fired, and could have been fired already!
She will be able to return to work soon but may have some restrictions for a few weeks, and there is plenty of book work that does not require her to be on her feet all day.
Is it legal that you can be fired while still on short term disability and not able to return to work according to your doctor and have a doctors recommendation for it? Or fired for not being able to return to work without restrictions for a short period of time?

Thanks

 

[cbg]

Yes, to all of the above. Collecting short term disabilty benefits does not provide any job protection whatsoever.

FMLA, which can and does run concurrently with STD but is not the same thing, does provide job protection for up to 12 weeks. On week 13, day 1, the employee can legally be terminated regardless of whether you are collecting STD, regardless of whether the doctor will not release you to work and regardless of whether you will have restrictions for a few weeks when you return or not.

 

[Beth3]

STD is a disability income benefit your wife receives through her employer's group health plan. It has nothing whatsoever to do with the granting and duration of medical leave. As cbg noted, that falls under the Family and Medical Leave Act. Assuming the FMLA applies, then your wife is entitled only to 12 weeks of leave, regardless of how long she receives STD benefits.

Is it legal that you can be fired while still on short term disability and not able to return to work according to your doctor and have a doctors recommendation for it?

Assuming the FMLA applies and your wife is unable to return after 12 weeks of leave, yes.

Or fired for not being able to return to work without restrictions for a short period of time?

Yes. If she's able to do productive and necessary work while she has restrictions, it's certainly possible that her employer will work with her on this.

 

[Betty]

Does your wife qualify for FMLA?

It seems she meets the requirement of having to work for employer at least
12 months.

Did she work at least 1,250 hrs. for the employer in the 12 months
immediately preceding the leave;
Does she work at a location with 50 or more employees within a 75-mile
radius?

FMLA, as noted previously, would be up to 12 weeks of job protected leave.

 

[Rob88]

Yes, she did have FMLA protection, but the 12 weeks had passed about a month ago.
She was to start a new position in January in a new area just being built, it was then pushed back to March due to construction not being finished.
Her manager calls her last Monday a week ago to say that her schedule that she had agreed to will be changing and that she must agree to the changes or she will not have a position.
Nor will she be able to maintain her old position that she was to work at until the new area opens....
Doctor released her to work this week with restrictions...
Her soon to be manager calls her today and conferences in current manager and informs her that she no longer has either position!!!
Her new position was not even to start until March now, and just last week confirmed her changed schedule!
Something smells a fowl here to me if she was just confirmed for a new schedule last week for a job position that doesn't even officially start until March.
She has been there 18 years and can only remember 1 person actually retiring, all others were ran off after they get so much seniority.

(I was subscribed to this thread but I have not been getting notifications that there were replies)

 

[Beth3]

Once your wife used up her 12 weeks of FMLA, all bets were off. Her employer no longer has to hold her position open for her and they may also terminate her employment should they wish to. The fact that they haven't terminated her and are at least considering her for other positions is a "gift."

Nothing illegal is happening here.

 

[commentator]

She should sign up immediately for unemployment benefits. Once the restrictions are off, she will be able to begin drawing the benefits. But the only thing you can get if terminated because you are unable to return to work after FMLA expires is unemployment benefits when you are able and available to work again.

They have taken advantage of your wife's situation to get rid of her, as you say they have gotten rid of others before. Unfortunately, this is quite legal.

What they were hoping, with all the previous garbage about changing her job and her schedule in March with the new position is that she would say "I quit!" instead of them having to tell her she was fired. This would have meant she would have a much harder time getting approved for unemployment benefits. But since she didn't take the bait, they went on and terminated her, so she was actually discharged for not being able to come back to work while she was not fully released by her doctor to return to work, which is good for unemployment purposes.

 

[Rob88]

Not elgible for unemployment either, she was forced into taking a part time position about a year ago after a period of harassment over her schedule which eventually led to the elmination of her work shift. This also all began after an open forum meeting where she had spoke up about some issues on the floor and was then accused of saying something different, she had recorded the meeting and had proff otherwise, so this has been the root of the harassment since. All of her reviews and evaluations as well as peers reviews have been impeccable and has always been viewed as a very valuable nurse with many skills that others do not have given her history with various areas of the hospital that she has worked. Not a single thing that could be possibly be viewed as a liability. Not to mention she is the only one in her area that teaches and keeps all of her certifications up to date.
Looks to be a very clear case of harassment to rid those which earn higher wages. If it were only this one incident, then I would tend to agree with the others. They also worked very closely with HR in their manuevering and dealings with her, some of which have been inconsistent with what HR had told her.

 

[cbg]

None of which changes the fact that if she is unable to return to work at the time her FMLA expires, the termination is LEGAL.

 

[cyjeff]

Okay... let me try saying this in another way.

This has nothing to do with running her off or seniority or anything else "fowl".

If they had wanted to fire her, they could have done so legally and without any repercussions whatsoever last month the moment her 12 weeks ran out.... assuming a part timer was even eligible at all.

It is that simple. If they wanted to fire her, they could have done so already and not played the games you seem to insist they are playing.

 

[Hot Topic]

Remember that HR is for the employer, not the employee.

 

[cbg]

HT, do you really want me to rebut that statement AGAIN?

ONE of HR's many responsibilities is to see that the laws are followed. It is NOT to blindly follow the employer's wishes, OR to give away the store to every employee who isn't getting what they want. Sometimes maintaining employment law means telling the employee, No; sometimes it means telling the employer, You need to do X.

But what HR does not have is the power to FORCE the employer to do what they say. I've worked for companies that accepted what I told them and if I said, You need to do X, they did X. But I've also worked for companies that fought everything I told them and when I said, You need to do X, they said, Tough cookies, I'm doing Y anyway.

And with all due respect to commentator (and I have a great deal of respect for commentator) she can't possibly know what was in the employer's mind or why the decisions that were made, were made.

 

[commentator]

How do you know she is not eligible for unemployment benefits? If she has the sufficient wages in the current quarters to set up a claim, she should go on and apply, eligible or not, and set up that claim. If she is able to set up a claim, the termination issue will be addressed, but she will not be able to get approved to draw any benefits, even if she is approved, because she is still under restrictions. But by all means, file the claim, even if she has only been working part time. After she has been out of work for any length of time, there won't be wages to set up a claim, whether she has been working full or part time.

I agree with you, cbg, I can't know what the employer is thinking of. I have spent many years trying to be impartial in situations of employer vs. employee. However, it is imperative that the employee remember that the HR representatives are employees of the company, specifically responsible for representing the employer's interests in HR issues and keep them behaving legally, not making sure you get all you want from the company. Some people labor under the delusion that the HR department is there to benefit them, the big pie in the sky guys who are going to give them what they want. Nobody should ever promise in HR to be "fair." You can aspire to get justice, but not necessarily fairness, which is always in the eye of the beholder anyway. Also agree wholeheartedly with the assertion that the employer (who sometimes feels terribly empowered and entitled anyway) can certainly refuse to take the advice and suggestions of the very best HR people, can do some really stuuuuppid things.

Quote:"Looks to be a very clear case of harassment to get rid those which earn higher wages." Which they totally can do if they want to. If their harrassment works, and they are able to get the person to quit, it is to the employer's benefit. And since "higher wage earners" is not a protected category, it's perfectly legal.

 

[Rob88]

Thanks for all the enlightenment on this situation. It's just so hard to believe that an employer can be so spinless in this type of situation, even just before Christmas also. I was half owner of a company for over 11 years, and never would we release someone in the months of Nov or Dec when we had 12-15 employees and contractors at the time.
She has known several people that were out for over a year and their positions were held but I guess its up to the individual case and their position. Although she was scheduled for 20 hrs/wk, she always worked for other groups and people that needed help or were short or needed time off, so she averaged over 32 hrs/wk before her accident, that may help if/when she files. She currently has 30 days to find another position on her own within the hospital or she is then considered to be laid off/fired, what makes it more interesting is she was told she could not apply for positions in the dept she had worked or the new area that was to open in March..I can't seem to find any basis for that restriction given her positive history.

 

[commentator]

The months of November and December are probably statistically the months in which there is the heaviest activity in termination of employees. Certainly nobody would even think of "Oh, I shouldn't do this to this poor person because it's going to be Christmas!" or something like that.

I repeat myself. She needs to file for unemployment benefits promptly. She needs to speak to her supervisor as soon as she is fully released, tell them she is able to resume her job with no restrictions, and let them tell her that she does not have a job to return to. If they want to, let them send her something telling here that she doesn't have a job to come back to while she is still on sick leave. In any case, she should file as soon as she gets this confirmation that she has been terminated.

It is not her responsibility to find another job within the facility herself. If her previous job says they don't want her back, if they say she has been terminated from this job while on sick leave, then she is out of work through no fault of her own, forget the "thirty days to apply for new positions" baloney. She is entitled to file for benefits as soon as she is out of work, and when they have told her she is out of work, that she may not return to work at her this job, she needs to file that claim!