Terminating an employee while on DBL

[fmcquown]

What is the name of your state?NY
We have an employee that has been on disability for 6 months and want to file a long term dbl claim. She is awaiting a kidney transplant and won't be back to work any time soon. Can we leagally terminate her? Can we require her to pay her own health insurance premium while she is on disability? Do we need to keep her employment status as open? Any help would be appreciated.

 

[cbg]

The longest that the law requires you to hold her job open is 12 weeks. You've done that and then some.

Yes, you can legally terminate her. Yes, you can require her to pay her own health insurance (you MUST offer her COBRA - it's her choice whether to elect it, but you MUST offer it) once her FMLA is exhausted (which it is if she's been off for six months) or if FMLA does not apply. No, you do not have to keep her job open any longer.

Somehow or other, a great many people have gotten the idea that an employee who is on disability leave cannot be terminated. There is no truth to that whatsoever. What the law says, is that an employee who has a condition that meets the definition of a covered disability under the ADA (which is only a small fraction of people who are on disability leave), cannot be terminated BECAUSE they have that disability. But even if her condition meets that definition (which is not established) nothing in the ADA prohibits an employer from firing an employee who is covered by the ADA but who:

1.) is not meeting their job standard
2.) is guilty of misconduct
3.) violates a company policy
4.) has exhausted all the medical leave required by state or Federal law, and is still unable to return to work

The law does NOT require an employer to hold an employee's job indefinitely, no matter how legitimate the medical leave.

Hope this helps. If you have more questions, feel free to ask.

 

[fmcquown]

Thank you.

Thank you for your help.

The longest that the law requires you to hold her job open is 12 weeks. You've done that and then some.

Yes, you can legally terminate her. Yes, you can require her to pay her own health insurance (you MUST offer her COBRA - it's her choice whether to elect it, but you MUST offer it) once her FMLA is exhausted (which it is if she's been off for six months) or if FMLA does not apply. No, you do not have to keep her job open any longer.

Somehow or other, a great many people have gotten the idea that an employee who is on disability leave cannot be terminated. There is no truth to that whatsoever. What the law says, is that an employee who has a condition that meets the definition of a covered disability under the ADA (which is only a small fraction of people who are on disability leave), cannot be terminated BECAUSE they have that disability. But even if her condition meets that definition (which is not established) nothing in the ADA prohibits an employer from firing an employee who is covered by the ADA but who:

1.) is not meeting their job standard
2.) is guilty of misconduct
3.) violates a company policy
4.) has exhausted all the medical leave required by state or Federal law, and is still unable to return to work

The law does NOT require an employer to hold an employee's job indefinitely, no matter how legitimate the medical leave.

Hope this helps. If you have more questions, feel free to ask.