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  • Employee Termination on Disability Leave Michigan

    I just want to verify this is correct and that we are ok to dismiss an employee, that is on disability leave. She worked for us for only six months and went on disability leave for 2- 4 weeks initially. That has been extended again and again and it will be one year next month that she's been on disability leave and her current return to work date is 2/1/13.

    She wasn't even qualified for FMLA but I want to make sure there isn't anything that could come back on us.

    Thanks.

  • #2
    Two answers.
    - Legally should be fine. No obvious third rails. If this went to court, I like your chances.
    - However this is the USA. I could sue you for personnally causing the Fall of the Roman Empire. I would not win (unless the judge is off his/her meds) but if I could afford an attorney, I could indeed sue. And the employers end goal should be avoiding court in the first place.

    Just a thought, but I really dislike shooting from the hip on terminations. Ideally unless it is something of the fire-them-NOW variety, you should have a general policy on termination, that policy should be legal on it's face, and you should just be following your policy. If this went to court, the obvious question is what changed between this week and last week. Why was in necessary to terminate the employee this week that was not true last week. I am not saying that you will lose, and your overall position looks fine, but the other side (should there be another side) will claim some sort of evil (and possibly illegal) motives to the termination. It is very useful legally to be able to show that you are treating this employee in exactly the same way as you would any other employee in the same position.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      You can terminate her - even if she qualified for FMLA she would have only had 12 weeks of job protected leave unless the ADA might have applied with "some" additional time being a reasonable accommodation. However, you are talking over one year by the time she returns. FMLA doesn't apply anyway.

      I agree that one might wonder why you waited so long to terminate & why exactly now. You really need a termination policy to follow. You "probably" (most likely) would win in court though if it went to court which may not even happen.
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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      • #4
        There are no sure things in court. There is a famous H L Menken quote that " a judge is a law student who gets to grade their own examination papers". But a good rule of thumb for termination policy is to have a legal policy and follow the policy. Then you always have a good reason for the termination. I am not saying that this is always or even mostly necessary but if the [bleep} hits the fan, it will give your backside a warm fuzzy feeling. Yes employment-at-will is mostly the law of the land, but at best it is a weak affirmative defense.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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        • #5
          Originally posted by MichiganHR View Post
          She wasn't even qualified for FMLA but I want to make sure there isn't anything that could come back on us.
          You should be ok but, as noted, if it went to court, there is no definite positive that you will be ok though you most likely will.
          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

          Comment


          • #6
            Originally posted by DAW View Post

            you should have a general policy on termination, that policy should be legal on it's face, and you should just be following your policy.
            If this went to court, the obvious question is what changed between this week and last week. Why was in necessary to terminate the employee this week that was not true last week. I am not saying that you will lose, and your overall position looks fine, but the other side (should there be another side) will claim some sort of evil (and possibly illegal) motives to the termination. It is very useful legally to be able to show that you are treating this employee in exactly the same way as you would any other employee in the same position.
            We just have our general "at will" policy that new hires sign, however, I would like to add a more specific policy related to this in the event it occurs again.

            Nothing really has changed from last week to this week, but the owner just brought it up and decided it's time. I think it would have been better timing to do it when we received her last extension of leave from the doctor, because it would have been more of a "enough is enough" standpoint, but sounds like we should be fine.

            Any tips on wording when I call her?

            Also any tips on writing a termination policy regarding this?

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            • #7
              There is no good way to terminate someone. In this situation, she can't be terribly surprised. I would just state that you are sorry but you are unable to grant additional leave and will be terminating as of M/D/Y. Ideally I would give some notice.

              While it is ideal to have a policy that specifies how long someone may be on leave, you have been more than generous. You are not breaking any laws at all so you really don't have to defend this too vigorously. Most employers would have let them go way before now. If you can get the supervisor to document why now, it can't hurt. There could very well be an excellent reason for doing it now.

              Going forward, I would look at what is realistic for your business. Personally, I'm always an advocate of meeting the law, but not guaranteeing anything outside the law. You may want to allow non-FMLA leave of 1 week for each month of service, but without a guarantee that they will return to the exact same job. The most constraints you put on your policy, the harder it will be to comply in the future. What you don't want to let happen is what happened here in allowing the situation to drag on until some arbitrary point when someone says "enough". The danger isn't so much with this employee but the next one who goes out in the same situation for whom you aren't able to grant an entire year of leave. If you have a policy, you are on far firmer ground than if you just wing it.
              I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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              • #8
                Thanks ElleMD and everyone. Great feedback!

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                • #9
                  You're welcome. Good info by ElleMD.
                  Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                  Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                  Comment


                  • #10
                    It did not go well. I figured she would accept it because we went above and beyond what would be expected but she didn't take it that way. She made comments like "so you're firing me!" and asked if we're sending her a letter stating we are firing her. I told her we weren't but nothing is changing because she'll still continue her COBRA and disability pay but we cannot continue to grant the leave extensions. We'll see if anything else comes of this. Gotta love HR.

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                    • #11
                      I have employees in Michigan. I have found when terming some that they need a letter for services they are receiving from the state. The state wants to know if the termination was voluntary or involuntary. I have seen it for daycare and for healthcare.

                      So that could be a reason for her request.

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                      • #12
                        No one is ever happy to hear they are being cut off and will now have to pay for their own health care. I'm not surprised she took it poorly which is another reason a policy is a good idea. If there is no policy, to a degree it becomes personal.

                        I would do a letter just as a follow up and CYA. Very short, sweet, and to the point. "Per our conversation on M/D/Y, your employment will terminate effective M/D/Y. Your insurance benefits will continue until _____. At that time you may elect COBRA. You will receive additional information in the mail within ___ days regarding your rights under COBRA. Company X wishes you the best in your future endeavors."

                        Don't get into the reason behind the term but do include any other company specific rules the person needs to be aware of. Do they need to return property? Do they still have an email account which will be shut off (word to the wise, I would lock that down immediately)? Do you have a policy about reapplying for employment/non-compete/non-disclosure?

                        For one, someone who has just been surprised by the news that they no longer have a job probably isn't in a state of mind to recall the details. It also documents exactly when they were notified and by whom in case "selective memory" kicks in.
                        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                        Comment


                        • #13
                          Originally posted by ElleMD View Post
                          No one is ever happy to hear they are being cut off and will now have to pay for their own health care. I'm not surprised she took it poorly which is another reason a policy is a good idea. If there is no policy, to a degree it becomes personal.

                          I would do a letter just as a follow up and CYA. Very short, sweet, and to the point. "Per our conversation on M/D/Y, your employment will terminate effective M/D/Y. Your insurance benefits will continue until _____. At that time you may elect COBRA. You will receive additional information in the mail within ___ days regarding your rights under COBRA. Company X wishes you the best in your future endeavors."

                          Don't get into the reason behind the term but do include any other company specific rules the person needs to be aware of. Do they need to return property? Do they still have an email account which will be shut off (word to the wise, I would lock that down immediately)? Do you have a policy about reapplying for employment/non-compete/non-disclosure?

                          For one, someone who has just been surprised by the news that they no longer have a job probably isn't in a state of mind to recall the details. It also documents exactly when they were notified and by whom in case "selective memory" kicks in.
                          Good advice again.

                          She was already on COBRA so I explained to her she will still be able to continue that and receive her disability income (which I verified) so nothing is changing.

                          HRinMA: I fill out those state forms too so I'm aware of what you're talking about. If she applies for aid, I'll get a form from the state to complete.

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                          • #14
                            This appears to be another of those threads that is attracting spammers for some reason; I've deleted three spam posts, each left separately, in the past two hours.

                            Because of this, I am locking the thread. I understand that it is a fairly new thread and may not have run its course. MichiganHR, I do not in any way want to impede your ability to get information. If you have any additional questions related to this thread, either PM Betty3 or me to unlock it for you, or start a new thread that includes a link to this one.

                            If we can't kill the spammers, we'll work around them as best we can while our valiant admins try to plug the holes.
                            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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                            • #15
                              I deleted more than one spam post from this thread but didn't want to lock it since it was so recent. However, OP can handle as cbg noted above.
                              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                              Comment

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