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Ask the HR Expert: Compensation & Benefits

Posted by NEHRA  May 19, 2011 09:00 AM

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Q. We have an employee who has recently left and will be applying for short-term disability and we have two issues. We have nothing in our policy manual about paying out sick time accrued when an employee goes out on disability. We DO have a policy which states that employees are not paid accrued sick time when they are terminated or quit. What suggestions do you have regarding the advantages or disadvantages or paying out accrued sick time during the disability elimination period. Second, our disability policy states that the employee must be an active employee. But how can the employee be considered active when they need to be out on disability?

A. It is unclear from your question if the employee terminated employment (no longer an active employee) and then became disabled or is disabled and no longer actively-at-work as a result of his disability. If the employee terminated employment (no longer an active employee) and became disabled then he has no rights to any benefits, including accrued sick time as stated in your policy or applying for disability benefits. If an employee is not actively-at-work as a result of his disability (employment has not terminated), then if he fulfills the definition of disability under your disability contract he will receive benefits once the elimination period is satisfied. How you apply accrued sick time during the elimination period is based on your policy. Not having an income flow while satisfying the disability plan elimination period can cause financial strain – bills continue to come in. To prevent financial strain, many employers choose to let their employees use accrued sick time during the time between being actively-at-work and collecting disability. In addition, we see many employers allowing employees to use accrued sick-time on top of a typical 60%, disability benefit so the employee is able to earn what they would have if they were actively-at-work. The policy manual’s silence on use of accrued sick time does not mean the employee does not have a right to use his/her accrued sick time in this way. The silence puts the employer at risk in defending employer-based decisions related to sick time use.

PEGGY SHEEDY

Q. I have a staff member that will be going out on FMLA -Half way thru the leave - her program will close and she and her department will be laid off. Do we have to pay for her insurance under FMLA, or can we send her COBRA notice instead?

A. It is important to remember that an employee out on FMLA leave should be treated the same as an employee that is actively-at-work with regards to termination and/or the payment of insurance premiums.

Prior to terminating or laying-off an employee while on FMLA, there should be a good business case for the lay-off – would the employee have been laid off or terminated if the employee was still working and not on FMLA leave – do you have enough documentation to prove that the employee would have been laid off or terminated regardless of the FMLA leave. If it is determined that the employee legitimately falls within the group to be laid off, then your obligations under FMLA end as of the effective date of the layoff. The employee is then treated the same as other similarly-situated employees and offered COBRA.

PEGGY SHEEDY

Q. Is bereavement pay mandatory in Massachusetts?

A. Bereavement leave pay is not mandatory in Massachusetts. Most companies will allow employees to use personal days or vacation days to cover these situations or allow for unpaid time off. Since the Small Necessities Leave Act was designed for school visits on behalf of children, medical appointments or accompanying elders to medical appointments; it does not cover this situation. Most companies have a policy for such leave including a definition of the family members covered.

— CHARLIE ANDERSON, Senior Consultant, The Employee Engagement Group

Q. I have an employee that is out of ST disability. I understand that I am required to keep a job open for her but I am I required to keep the same job she left at the same pay?

A. Many companies start ST Disability after one – three weeks. Companies may require that employees use earned but unused sick days before ST Disability kicks in. You should evaluate the terms of your company's short-term disability benefit policy or plan, and ensure that the company complies with the numerous laws that may protect an employee on disability leave, including state and federal disability discrimination and anti-retaliation laws and the Family and Medical Leave Act. Since ST Disability coverage generally runs 60-180 days, you should then evaluate the business need to fill the position immediately. If the need is there, you should offer the person who was out on ST Disability an equivalent position at the same base pay when they return.

— CHARLIE ANDERSON, Senior Consultant, The Employee Engagement Group

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About NEHRA - The Voice of HR Featuring articles and resources for Human Resources / HR professional and hiring managers from the Northeast Human Resources Association (NEHRA).
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