Lose job and STD benefit due to pregnancy - Need your advice!!!

[mnwind]

What is the name of your state (only U.S. law)? MN

My wife is pregnant for about 27 weeks. Her Obgyn doctor ordered her to be on bed rest until delivery due to multiple concerns such as bleeding, contraction, and positive FFN test result etc. This means that she needs to be on short term disability leave for 3-5 months depending on when my wife actually delivers the baby. Her company is a fortune 500 big corporation and they offer up to 5 months short term disability policy. We submitted the application together with the supporting documents from the doctor in this week. The process has been smooth until today when my wife called HR to check the status:

HR said they are working on the case, but there is a possibility that because my wife's job is critical, they have to hire someone else to do the job if she leaves for more than 3 months. Since my wife has not worked for the employer for more than 1250 hours in the past 12 months, FMLA law doesn't apply. Further more, the short term disability (STD) insurance is paid by the company, and my wife is required to be continuously employed to collect STD benefit, so if my wife lose job she will also lose STD.

This was totally unexpected. Essentially it means that my wife may not be able to keep her job and because of that she won't be able to have insurance benefit. It sounds so weird and HR said that she will go back to double check the company policy.

Do we have a legal ground to fight if they really decide to do so? Is there any implication of discrimination?

 

[ecmst12]

Losing her job will not end her STD benefits. She was employed when the claim was opened, and the claim will be good until she is no longer disabled.

 

[cbg]

Do we have a legal ground to fight if they really decide to do so? Not on the basis of what you have posted, no. And FYI, there is no "we" here legally. I understand support and family solidarity and how what happens to one affects the other, but legally, only your wife has standing to do anything here, and she does not have a legal leg to stand on based on your post.

Is there any implication of discrimination? Not unless you can point to a similarly situated individual who also did not qualify for FMLA but who had a medical condition unrelated to pregnancy, and whose job was held beyond the point that your wife's was.

 

[mnwind]

Thank you for the reply. Can my wife get state unemployment benefit after she recovers from the delivery (STD stops)? I assume it will take her sometime to find another job if she does lose the job this time.

Another question: will this be counted as a layoff? FYI, my wife has been high performance employee in multiple previous roles. There is no performance issue here.

Losing her job will not end her STD benefits. She was employed when the claim was opened, and the claim will be good until she is no longer disabled.

 

[ecmst12]

Yes, she will be able to collect unemployment once she has been released back to work by her doctor.

 

[cbg]

Before I answer the question about the layoff, please explain what you think will be different if it is, than if it isn't.

I'm asking for a reason.

 

[mnwind]

Good question. Quit, layoff and fire are three most common terminations. Quit is from employee, layoff means job is eliminated, and fire indicates a performance issue.

Her company has standard lay off policy: 2 months advance notice, and 1 month minimum severance pay.

You know why I'm asking now.

Before I answer the question about the layoff, please explain what you think will be different if it is, than if it isn't.

I'm asking for a reason.

 

[wavehopper27]

http://www.growingfamilybenefits.com/mn_short_term_disability

 

[cbg]

Unfortunately, layoff also implies that there is a very real possibility that the employee will be recalled to work. I'm afraid I don't see this as a layoff.

But from an HR perspective, your assumptions of how each option is viewed, are faulty. "Fired" does NOT, to the average HR manager, infer a performance issue.

 

[commentator]

No, it certainly doesn't. For purposes of unemployment insurance, a lay off only means a person is out of work through no fault of their own, as in a company downsizing or R.I.F. A termination is a termination, regardless of the reason. "Getting fired: usually implies they had a reason to terminate. If they terminate your wife because she is on medical leave and they have to refill her position, and she is not protected by FMLA, that is NOT a lay off. It is a termination. She was fired because she had to be out of work. However, it is not a "misconduct" termination, the firing was not really for a reason that she could control.

The unemployment system is not going to ask for or consider semantics when they detemine her eligibility for unemployment. She does not need to demand the company says one thing or another when they do actually terminate her due to her having to be away from work for a medical reason.

As long as she has documentation from her doctor that the medical excuse was valid, she will probably be eligible for unemployment insurance benefits when she is able to return to work, when she has been fully released from her medical situation, which will be several weeks after the childbirth occurs. She must also, at this time, be able, available and ACTIVELY SEEKING other employment. She can't tell them she wants to draw but also wants to stay home with the baby.

What I would strongly advise her to do is go on and file a claim for benefits at this time, as soon as she leaves work. This does not mean she will get to draw it, she's not medically able. But it will set up the claim, if she has one, and that claim will be good for one year from the date it was filed. You mention that your wife has not been working at this place long enough to be approved for FMLA.

When a person files a claim, the quarters of wages in the last 18 months are pulled in to set up a claim. If she is out of work three or four months before she files the claim, the quarters will have changed and rolled forward so that she may not have as many quarters with wages, and may not be able to set up a claim. If you don't have enough wages to make up a claim, you do not get to draw unemployment insurance benefits, regardless of the circumstances under which you left the job.