Termination on LTD Nebraska

[chewy44]

My wife just transitioned from Short-Term Disability (STD) to Long-Term Disability (LTD). When she called her employer's HR department to ask about some information pertaning to a correction that needed to be made involving her LTD the HR person told her that her employment has been terminated. When she asked why she was told that once they receive LTD paperwork they process a termination. I had always heard that an employee can not be terminated while out on disability, they can only be terminated upon their return from disability or when it is something that impacts their entire department such as a lay off that causes the termination of everyone in their department.

Has anyone had any experience with this or happen to know the law on this matter. If I am wrong that is fine, but if I am correct I want to be able to plan our next course of action ASAP.

Thanks in advance.

[cbg]

You are wrong.

There is NOTHING in the law that says an employee cannot be fired while they are on disability leave. Neither short nor long term disability provides any job protection whatsoever. Only FMLA provides job protection. What the law says is that IF an employee has a disability that is protected under the ADA (which is not all or even most people who are on disability leave but only those who have a permanent or long term disability as defined by the statute) cannot be selected for termination BECAUSE of their disability.

An employee who qualifies for FMLA is entitled to up to 12 weeks of protected medical leave. Once those 12 weeks are up, in the absence of a state law (which Nebraska does not have) or a binding and enforceable contract, policy or CBA which specifically says otherwise (which you did not mention) the employee can be terminated legally on week 13, day 1, of the medical leave regardless of whether they are still collecting disability benefits or not.

An employee who does not qualify for FMLA has no job protection at all unless such is provided by binding and enforceable contract, policy or CBA (which again you didn't mention) or state law (which again Nebraska doesn't have).

The law does not prohibit an employee from terming an employee until after the leave is completed. In some circumstances (though not the ones you describe) it might be considered best practice to do so, but failure to wait until the employee returns from leave does not violate the law.

[joec]

STD,and LTD plans fall under ERISA contact an attorney that is familiar with ERISA law to see if there was a violation. You cant offer a plan then fire an employee for exercising it.
JoeC

[cbg]

She's not being fired for utilizing the benefit. She's being fired for being unavailable for work.

Although I can see where you're getting this, it seems pretty clear to me (from years of administering such plans) that a policy exists which sets the termination at the point where the STD benefits end. This is legal. Most STD plans end at either 13 or 26 weeks, either of which is well within FMLA.

[joec]

This poster has an LTD plan on top of a STD plan. Even if they fire him the plan should stay in effect. Otherwise it is not an LTD plan.
JoeC

[cbg]

I agree. No one said the LTD policy would be void. It would be HIGHLY unusual for the LTD plan to be dependent on employment status. The benefits should continue as long as the poster's wife is disabled by the definition under the LTD policy, regardless of whether she is employed by the employer or not.

But it is not really all that unusual for an employer to terminate at the end of the STD benefit, since it gives them more time than FMLA requires and an employee who is ill or injured enough to need the LTD benefit is clearly going to be gone for longer than the law protects.