How Long Do We Need to Continue to Keep This Employee on Payroll and Benefits?

Although I am not a Human Resource expert, I frequently come across information that I feel will be of value to you or your clients. Below is an article I feel will be of value to you.

Having employees either on extended leave or extended revised duties due to injury or illness can place a burden on employers; but be careful, make sure all of your ducks are  in a row before you make a quick decision to terminate any employee or even terminate  benefits. Making the wrong decision could prove to be a legal nightmare if the  employee decides to sue. Employers need to ensure they comply with FMLA, ADA and  Worker s Compensation considerations. If a company has an employee who is ill or injured and cannot work, whether the result  of a Worker s Compensation injury or illness or something that occurred outside of the  workplace, one of the first things to consider is whether the company is required to  comply with the federal Family and Medical Leave Act (FMLA) or a state family and  medical leave law and whether the employee in question qualifies to take such a leave.  Under the federal FMLA an employee s job will be protected for up to 12 weeks each  year and benefits must be maintained as though the employee was actively at work.  Benefits cannot be cancelled during the time the employee is on FMLA, unless either the  employee elects to terminate benefits during the FMLA period or they do not pay their  portion of the premiums and are 30 days in arrears. The laws at the state level that  allow an employee job protection due to illness or injury vary and employers should  ensure they comply in addition to the federal FMLA when applicable. State and federal  family and medical leave will typically run concurrently, so though the employee  receives the benefit of job protection at both the federal and the state level, the amount  of leave they receive is not extended. In addition, leave taken for an injury or illness  covered under Worker s Compensation will run concurrent with FMLA. Though the  Americans With Disabilities Act (ADA) is not a form of leave, those who require leave as  an accommodation for a disability may use FMLA if the company is required to comply  and if the employee qualifies for such leave. Once an employee exhausts the leave available to them under either federal FMLA or a  state family and medical leave law, things become a bit more unclear to most  employers. If the employee is ready to return to work either at the end of the 12 weeks  (or amount of time allowed by state law) or even before the end of the 12 weeks, then  things are pretty simple; the employee will return to work either with or without  restrictions. The employer will typically require the employee to provide a fitness for  duty certification in order to return to work. If the employee is unable to return to work  or only able to return with restrictions imposed by their medical provider, things can get  a bit tricky. The first thing an employer must consider is whether or not the employee is  covered under the ADA. If so, the employer will be required to engage in an interactive  Release: May 2017 process with the employee to determine if a reasonable accommodation is needed in  order for the employee to perform the essential functions of their job, or if the  employee will need to be afforded additional leave as an accommodation. The  employer is required to provide an accommodation (be it additional leave or modified  work) unless they are able to prove that providing the accommodation will create an  undue hardship for the company. An employer that provides an accommodation is not  required to provide modified job duties or continued leave for an indefinite period of  time. If the employer learns that the medical professional does not expect the  employee to return to their job or that the employee will not be able to perform the  essential functions of the job, the employer may consider termination of employment.  It is important to note that being provided with an accommodation under the ADA does  not protect the employee from poor performance. If the employee is not performing  based on the expectations of the company, discipline and even termination can occur. Those who require leave of modified duties as a result of a work related injury or illness  under Worker s Compensation should be treated the same as those who develop an  illness or sustain an injury that is not work related. If qualified for FMLA, it should be  provided and the employee is not entitled to any additional leave than would be  provided under the federal or applicable state laws. If they can return to work at the  end of the leave period, without restrictions, then the situation is simple as noted  earlier. If the employee requires additional leave or requires modified job duties, ADA  should be considered and the employee should be provided a reasonable  accommodation. Again, the accommodation does not need to be made indefinitely if it  is know that the employee will either not be able to return to work or will not be able to  perform the job they held prior to the injury or illness. For employees who do not qualify for FMLA or applicable state leave the employer  should look to any internal policies that would allow an employee to take medical leave.  These internal policies will dictate how long the employee can be on leave and how long  benefits will be provided.  There are some additional concerns with regard to benefits when an employee takes a  leave and does not return from leave after exhausting leave provided under FMLA or  state leave laws. Under the Affordable Care Act, employees are entitled to benefits  during an entire stability period. Therefore, if the employee does not return from leave  and is allowed either additional leave or works a modified work schedule as an  accommodation, they must be allowed to retain benefits during the remainder of the  current stability period. For those employees where an accommodation of additional  leave or a modified schedule is not made due to it creating an undue hardship for the  employer, the employee s coverage may be terminated at the time employment is  terminated and the employee should be offered coverage under COBRA. Employers should be mindful of the language contained in their plan documents when  developing internal leave policies. The plan documents will outline how long an  employee can remain on the plan. The documents may outline that an employee has to  be actively at work or may state simply that the employee must remain employed. This  does not mean that just because someone has a Worker s Compensation injury or  illness and is on leave for an indefinite period of time that the employee should remain  an active participant on the group health plan. Check the plan documents and act  according to plan provisions.