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Medical leave
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Medical leave
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
I have an employee that got sick and had surgery on May 14, 1998. she has not returned to work as of yet, but calls each week with progress reports. We are still carrying her on our payroll altho she
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Forums » Topic Forums » Legal Forum » Medical leave
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Medical leave
posted at 7/9/1999 12:15 AM EDT
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Posts: 36
First: 6/15/1999 Last: 12/8/2010 |
I have an employee that got sick and had surgery on May 14, 1998. she has not returned to work as of yet, but calls each week with progress reports. We are still carrying her on our payroll altho she is not getting paid, and we are still paying for her insurance for her and her dependents. She owes back insurance payments but is making payments. My question is can we terminate this employee and have her go on cobra? |
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Medical leave
posted at 7/9/1999 1:22 AM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
If your company is covered under the FMLA, and you had not notified her of her rights under the act, you must keep her on for at least another 12 weeks. Part of the notification would include what she would need to do for insurance. The federal FMLA has no requirement for you to carry her benefits, but an FMLA leave is not a COBRA qualifying event - you must allow her to pay for her benefits at the same rate that you are paying for her now, and, with 15 days notice, cancel her insurance for non-payment if payments aren't made. If her insurance is in force at the time you terminate, if that's the way you go, she'd be eligible for COBRA.
If you haven't notified her of the leave, do so immediately, and then end her employment if she does not return at the end of the 12 weeks. If she has been notified of the leave and has been on it for over a year, inform her that you cannot continue her employment, and pick an effeective date. As an aside, this is one of those cases where your handbook should include that statement that says something to the effect that, if any employee cannot return to work, regardless of reason, for [whatever period, usually a year], their employment will be ended. |
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Medical leave
posted at 7/9/1999 1:30 AM EDT
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Posts: 36
First: 6/15/1999 Last: 12/8/2010 |
Another question for you. If we were not covered by FMLa when this perosn went on medical leave because we did not have 50 employees, but about a month later we did have 50 employees and were covered by FMLA how would this effect the employee? |
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Medical leave
posted at 7/10/1999 5:28 AM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
I believe the situation at the onset of the leave rules, so the employee would NOT be covered under the Act but would recieve whatever you'd agreed upon when the employee left. The nature of the situation may warrant ADA considerations, and there's always the implied promise to reinstate the person., if there was an indication that this individual could stay as an employee until able to return.
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Medical leave
posted at 7/10/1999 7:13 PM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
Well, once again, I substantially agree with Jim. I do note, however, that your state may have a mini-FMLA statute which could govern even if you were not covered by Federal FMLA. Thus, you have to be very careful about these types of leave cases. I am also assuming that you treat all employees equally. (It would be a problem, for example, if you have had men out on long term unpaid leaves without terminating them, but the women all got terminated after a year.)
On another note, however, keep in mind that COBRA may come into play even if the employee's employment is not being terminated. For example, under some plans, if an employee is not on FMLA leave and does not work the minimum hours in a period (say a quarter), then s/he looses coverage under the plan (a COBRA event) and still has a job. COBRA notices must go out when plan coverage terminates for any reason (other than plan termination), no matter what the employment status of the individual. |
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