I have a friend that went on short term disability. During the time she was on STD, the company fired her and replaced her. Is this legal? She (through her doctor) gave continuous updates to the company as to her condition. As far as I know, the company never asked for a date for her return, and gave no warning when they fired her. The letter was fedex’ed to her a day before the effective date.
I thought that a company had to keep a position for you if you were on STD. Am I mistaken? Does my friend have any legal recourse?
OK… Since I’ve unwittingly chosen an acronym that has a double meaning, is there anyway I can change the subject to more accurately reflect my question?
Oh, moderator…
DISCLAIMER: While I am an attorney who practices labor and employment law, I am not licensed outside the Commonwealth of Pennsylvania and this information is not intended as legal advice. The answer to this question is not intended to substitute for consultation with an attorney in your particular jurisdiction. No attorney-client relationship is implied or created by this response to your question and I am not acting as your attorney.
There’s a lot of information we don’t have regarding the terms of her employment agreement (the employment contract or the “implied terms” based on the employee handbook, employer policies, and so on) and the employer’s policies and procedures regarding disability benefits.
Then, you have to add in whether this was a short term disability based on an employer funded pension/disability plan or private insurance paid by the employee or the company or both and what the terms of that program are.
On top of that, there is probably some sort of statutory framework in your jurisdiction that has to be dealt with.
So, your friend should contact an attorney in your jurisdiction to get some guidance on this issue. If he or she doesn’t know one, call the county bar association. They’ll be glad to refer you to someone who can give you good solid advice.
Thank you so much for your reply. Here is what I know. The short term disability was paid for by her company thru a third party (Unum). Coincidentially, she lives in Pennsylvania, however she was employed in NJ. There is no such thing as an employee handbook as far as she knows, however she will contact a collegue to see if she missed something.
In general, assuming she has a case, is it worth pursuing?
I would have to believe that an employer is responsible for the employee’s position. Even if they couldn’t keep a particular position, they should be required to offer a similar one with similar pay (assuming they haven’t gone bankrupt.)
Which leads me to one last question. Since she was terminated, does that mean that her Short Term Disability benefits also cease on the termination date, or if the third party insurance provider is satisfied that there indeed is a disability will they continue to pay?
Something just strikes me about this situation that seems inherently unfair, but that doesn’t mean her company can’t do it.
The Department of Labor has a division (or department or office or bureau) that handles this kind of thing and will try to help your friend. In some situations they will sue an employer on an employee’s behalf (at least they will for FMLA type problems, and the OP’s friend’s situation sounds similar to an FMLA type situation). At the very least, they should be able to tell her about the laws that apply to her and her situation. Be warned: when I had to contact the DOL about a similar type situation in the past, it took me forever to find a real live human being, and even then I had to leave a message; lots of computerized telephone menus (If You Are Calling From A Touch Tone Phone And Want To Be Irritated In English, Press One; If You Want To Be Irritated In Spanish, Press Two . . .).
There’s also a wealth of information at the DOL’s website.
As a California attorney, I will try to weigh in while not trying to step on any toes or make assumptions.
You have posed several very specific questions. Questions like “Is this legal?” are things that attorneys may answer hypothetically, so long as everyone understands that they are repeating general information outside of an attorney-client relationship. Asking things like “Is this case worth pursuing?” is more specific than most attorneys would feel comfortable answering outside such a relationship, and without more information. The questions you have asked are things that your friend probably should take to an attorney that 1) practices in your friend’s jurisdiction (you said Pennsylvania), and 2) is looking to represent her. It is difficult for an attorney to answer the questions you have asked, because attorneys may be held liable for malpractice for answers they may give, if that answer is construed as legal advice. This happens (at least in California) whether there is a formal attorney-client relationship or not. That’s why many of the attorneys here almost always start their posts as Zappo did: with a big DISCLAIMER. The reason I haven’t is that I don’t know enough about Pennsylvania employment law to pose an opinion beyond “Seek competent legal counsel.”
All of your questions depend on the jurisdiction of the participants, and would benefit from some sound legal advice within the framework of an attorney-client relationship. Many attorneys might be willing to look at such a case for free, or for a small fee, and may be willing to work on a contingency basis (a share of the award if your friend wins, no fee if your friend loses). “Have your friend consult a local employment law attorney” is the best advice I can give.
Understand that this is my opinion, and I am very conservative regarding what may appear to be legal advice. Other attorneys may be more than willing to give advice here. However, most attorneys are beaten to death in law school and in practice that giving legal advice such as you seem to be requesting is a ticket to an eventual malpractice suit.
I wish your friend luck, though. From what you’ve said, her situation sucks.
And yeah, I thought it was a question on sexually transmitted disease, too. If you’re serious about changing the post title, I’m told that an e-mail to a board moderator works…
Only moderators can edit threads. I edited the title to include “short-term disability.” For future reference, you can e-mail a moderator to make changes for you.
Redhawk-
I can appreciate your comments. I know that any message board is not the place to seek legal advice. On the other hand, I do know that many attorneys read the board and can give general advice. My friend has not as of yet sought the advice of an attorney, and my question was meant to see if she had any grounds to sue. The main question is whether or not a person who is on short term disability has to worry about their position. In a right-to-work situation, I understand that a person or a company reserves the right to sever the relationship at any time. I also have heard that if a person’s position is eliminated, then a company can terminate an employee regardless of their situation. I have a friend who found herself terminated while on maternity leave. Her company justified it by saying that her position did not exist any longer.
My friend’s situation is a bit different. Her termination letter states that they would be replacing her, not eliminating her position. As I said, the company may have the right to do this, but I don’t understand why. STD should afford some type of position protection. Why is this different than an employee that goes on military reserve duty for two weeks? An employer cannot sever that person… or can they?
Mephisto - Thank you for the advice. I will take a look at the website. I will also suggest to my friend that she seek the advice of a labor attorney. (She’s hesitant because of the cost.)
bibliophage - thank you for changing the thread title. I do appreciate it.
INAL either, but I’m an employee benefits administrator and deal with STD/FMLA issues. Max, do you know if your friend received any info from the company regarding her rights under the FMLA? She should have received a letter that either advised that she is eligible for 12 weeks of job protected leave, or advised that she is not eligible for job protected leave under the FMLA (and then stated the reasons why she isn’t eligible). I would have to check my cheat sheets at work, but I don’t believe that NJ has any Family Leave type mandates that provide greater protection than the FMLA (which is Federal). So, I think the company could possibly be in some trouble for terminating her employment without having advised her of her FMLA rights. To my knowledge there is no job protection beyond the FMLA (and some state mandates) for employees who are on STD or unpaid leave. Military leave is a different issue.