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Laid off after applying for short term disability Virginia

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  • Laid off after applying for short term disability Virginia

    Hello,
    Shortly after my mom applied for STD (and was approved) her company notified her that she will be laid off in a month.
    She will be laid off when she is on disability.

    Her company will not pay her disability benefits (salary continuation benefits) after she is laid off.

    My mom has been laid off after working for 11 month and 9 days (I guess this makes her ineligible for FMLA).

    Is there anything we can do to at least get her company to pay her disability while she can not work? They are planning to lay her off a week after she goes on disability. Her doctor says that she will not be able to work for at least two month.

  • #2
    What is the reason she is being laid off?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      "business reasons", whatever it means. She is the only employee in her group to be terminated. Her group is rather small, only 4 people. The company has closed an office in Florida and laid everyone off. My mom is working in Virginia so her termination should not be related to a large layoff in Florida.

      Comment


      • #4
        That's not necessarily true. Do her specific job duties relate to the Florida location?
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          No, she never worked with anyone from that office.

          but I guess the question is, can they stop paying her salary continuation benefits (short term disability pay) after they lay her off?

          The firm offers short term disability to all employees. They are supposed to pay 100% of employee's salary for the first month and 75% for the next two months.

          Can the company avoid paying short term disability by laying my mom off? She will start disability on May 25th. She is scheduled to be laid off on June 9th. The HR department says that she will not receive short term disability payments after June 9th, since she will no longer be employed by the company. Her doctor estimates that she will be ready to go back to work sometimes early august.

          So my mom will not get paid from June 9th till early August when she is off disability and can apply for unemployment.
          Last edited by kate22182; 05-24-2011, 12:30 PM.

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          • #6
            but I guess the question is, can they stop paying her salary continuation benefits (short term disability pay) after they lay her off?

            Yes. Since it's a salary continuation program (rather than an STD benefit through an insurance carrier), the employer writes the "rules of the road" on this program. It seems logical to assume that only "active" employees (i.e. those not on layoff status or who have been terminated) are eligible for salary continuation. Your mom will have to discuss this with her employer to be certain however.

            Since your mom isn't eligible for FMLA, they don't have to extend any leave time to her. They can, if they wish, terminate her employment the first day she is unable to work due to her medical condition.

            So my mom will not get paid from June 9th till early August when she is off disability and can apply for unemployment.

            Of course your mom can apply for unemployment but it doesn't look likely she will be eligible to collect it. A claimant must be available for work in order to be eligible for UC - if your mom can't work due to a medical problem, then she won't receive UC benefits.

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            • #7
              Thanks for your reply.

              So it looks like it would be to our benefit not to go on disability at this time, so she can at least collect unemployment benefits....

              Does the company have to specifically state somewhere (have a written policy) that the company will not pay salary continuation benefits to employees who have been laid off (even if they started short term disability before they were laid off). Or should this be self explanatory?
              We could not find any reference to this in employee handbook or in benefits package.

              Also, is it legal to retaliate against someone for applying for disability? My mom was given a very positive performance review. We strongly believe that she wouldn't be laid off if she had not applied for STD. The company has laid her off on purpose right before she would be eligible for FMLA, so they wouldn't have to pay her salary continuation benefits...

              Comment


              • #8
                Whether she is or is not entitled to unemployment will not be determined by whether she is or is not collecting disabilty benefits but by whether her doctor has cleared her to work. If he has not, then she is not eligible for UI regardless of whether she is collecting disability benefits or not. So if he hasn't cleared her for work, she may as well apply for disabilty.

                No, the employer is not required to spell out that they will not be eligible for salary continuation after they are no longer employed. In your state (and in 44 others) they are not required to provide any kind of disabilty benefits at all, let alone after termination.

                Your last question is a bit difficult to explain due to there being differing meanings for the word, disability, even within employment benefits. But I'll do my best.

                First of all, you need to understand that collecting disability benefits does not, under any circumstances whatsoever, provide job protection. FMLA, which can and does run concurrently with STD benefits, provides job protection, but collecting disability does not. However, your mother has not worked for the company long enough for FMLA to apply, and the eligibility requirements are set by Federal law, not by the employer. Either she does or she doesn't, and your mother doesn't. The employer may provide medical leave to non-qualified employees if they choose to, but they are not compelled to and if they do the leave is not protected by law.

                There is a Federal law, the Americans with Disabilties Act, (ADA) which provides certain protections to certain disabled employees. However, the protections are not unlimited, and not all or even most employees who qualify for disabilty benefits will qualify. An employee who qualifies for ADA protection cannot be fired BECAUSE they are disabled. But that does not mean that an employee who qualifies for ADA protection cannot be fired at all. And from your description, your mother would not qualify for ADA protection at all; the ADA covers employees with a permanent or long term disability - if she is going off work in June and should be able to return in August, that is a short term disability that is not protected under the ADA. Nor does the ADA guarantee leave; the goal of the ADA is to have disabled employees on the job working on a level playing field - not to keep them off. A SHORT extension of a leave can sometimes be considered a "reasonable accomodation" under the ADA but the ADA does not guarantee lifetime employment regardless.

                Nor does either FMLA or the ADA protect an employee from a termination that would have happened anyway. Even if FMLA or the ADA did apply, your mother (there is no "we" here) would need to provide clear and convincing evidence that she would not have been selected for layoff had she not applied for protected medical leave. Given that her leave is not protected and that there is a massive layoff going on elsewhere in the company, I think she might have difficulty proving that.
                Last edited by cbg; 05-25-2011, 09:07 AM.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                Comment


                • #9
                  Thank you four your input guys. I guess my mom will have to rely on her savings for a while. It is just seems unfair that her company was able to get away with not paying her anything while she is on disability. STD policy was a part of her compensation package and now they laid her off so she wouldn't use the benefit that was offered to her when she was hired. I do not understand the purpose of STD insurance at all if a company cam simply lay you off and thus avoid paying a worker on disability.

                  Comment


                  • #10
                    The point is, Kate, that under the circumstances you've described, it is not at all clear that she WAS laid off to prevent her using the benefit.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                    Comment


                    • #11
                      Well, considering the fact that her job was not related to the Florida office which they closed and that she is the only person from her group that is being laid off... Please correct me if I am wrong but according to fmla the burden of proof is on the employer not the employee. The employer needs to prove that her layoff has nothing to do with her application for STD. Granted my mom is not eligible for fmla so this may not apply . I have one more question: her company has offices all over the country. Some states have expended fmla coverage to remove the 12 month requirement. The company doesn't have an office in va, my mom was a telecommuter. The are incorporated in ct . Can my mom use the fmla rules from another state if the company has an office there? Can she use fmla rules in ct since the company is incorporated there? Thanks again for your detailed explanations and your time.

                      Comment


                      • #12
                        The way eligiblity for FMLA is determined, in addition to time worked, is whether the employer has 50 or more employees within 75 miles of the employee's job site. If the employer has no office in Virginia and your mother was its sole Virginia employee, she would not have been eligible for FMLA even if she had worked there for the requisite length of time.

                        If your mother is located in Virginia, then Virginia law is what applies to her.
                        I am not able to respond to private messages. Thanks!

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                        • #13
                          Hmm. From what I read there was a fmla related ruling that stated that in case of telecommuters or people without permanent office (sales people , drivers) the work location is the office from which work assignments are given. In my moms case it is Indiana . Her company has a large office there.

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                          • #14
                            Is the precedent you site from a court with jurisdiction over the state of Virginia? It really is determined on a case by case basis. Also, that sales/driver exemption is for people who travel for business. From everything you've posted, your mother worked from her home, not from her car between sales cales.

                            If your mother feels that her rights under FMLA were violated, her recourse is to file a complaint with US DOL. If she feels her rights under ERISA were violated with regard to the salary continuation program, her recourse is to file a complaint with EBSA.
                            Last edited by Marketeer; 05-25-2011, 10:05 AM.
                            I am not able to respond to private messages. Thanks!

                            Comment


                            • #15
                              If she has not worked there for a minimum of 12 months then FMLA is irrelevant anyway. Regardless of the number of employees the employer has, the employee has to have worked there for 12 month for FMLA to apply.
                              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                              Comment

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