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Can a terminated employee on FMLA leave use long-term disability?

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Question: “I have an employee who was three weeks into his FMLA (Family Medical Leave Act) approved leave when we had a reduction in work force. I believe we followed all protocol on this termination, but now we are faced with the ex-employee expecting to use the LTD (long-term disability) program. I explained this was not a benefit after termination but I am not sure we can stop this benefit without violating ERISA (Employee Retirement Income Security Act). We did offer this benefit as part of the hiring process and the employee has a good argument. Do we go back and allow this one employee to use the LTD program?” — Susan

Comments

check out - http://www.dol.gov/elaws/esa/fmla/eb6.asp

Legitimate Personnel Action
An employer may not take any adverse action against an employee for the taking of FMLA leave, however, any personnel action/decision that would have happened if the employee had continued to work may happen while the employee is on FMLA leave.

For example if an employer decides that a reduction-in-force is necessary and the employee taking FMLA leave legitimately falls within the group of employees to be laid off, the employee is laid off even while taking FMLA leave. If the employee is laid off, the employer's obligations under FMLA stop as of the effective date of the layoff. See Regulations Part 29 CFR Part 825.216(a)(1).

In our state for public employers, the employee would be eligible for LTD benefits as long as when the employee went out on leave they were paying LTD premiums - even if they did not work for the employer.

I just went to a training for our LTD and STD and this was discussed.

Susan - just a floow up from my previous posting, I got my information directly from the national department of labor website under FMLA.

The employer paid the LTD premium but will not pay it any longer since the term... This was not offered as a cobra benefit. The attorney is quoting ERISA covers an emp under the disability that he was offered the benefit as part of his hiring package and he is entitled even though we are not paying this, should we pay this premium and offer the emp to cover the cost?
I really need some answers on this, management is wanting to make this go away

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