We have an employee that was in a minor car accident last month and has used up all of her paid time off (PTO). She is working on the paperwork for short-term disability (STD) as she has filled her elimination period. She will not show the employer the application. Is she obligated to if the coverage is non-contributory?
Do we have to keep her employed? Is this an FMLA issue?
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Thank you for your inquiry regarding an employee who has applied for short-term disability insurance.
STD benefits. Typically, STD insurance is purchased by an employer and the employee’s right to benefits is determined by the insurance company, not by the employer. Unless the policy provides otherwise, the employer is not entitled to see the information the employee provides to the insurance company.
FMLA. Your question indicates your organization has 20 employees which is below the 50-employee threshold required for employer coverage under the FMLA. The FMLA affects private employers with 50 or more employees for each working day during each of 20 or more weeks in the current or preceding year. All public employers are covered, regardless of size. There are also special provisions for teachers and other instructional employees of public and private elementary and secondary schools. Learn more about employer coverage and employee eligibility on HR.BLR.under the Leave of Absence (FMLA) topic.
Employment. If the employee is not protected by FMLA, she is not entitled to job reinstatement and other FMLA rights. However, if the employee has a disability as defined by the Americans with Disabilities Act (ADA), she may be entitled to leave as a reasonable accommodation for her disability.
Generally, an employee must request a reasonable accommodation to trigger an employer’s obligation to begin the interactive process with the employee. The interactive process is basically a conversation between the employer and employee to determine whether the employee has a covered disability and what kind of accommodation would allow the employee to perform the essential functions of her job.
Leave is a reasonable accommodation when it enables a qualified employee with a disability to return to her job after taking the necessary time to recover. Employers are not required to provide indefinite leave (or any accommodation) that imposes an undue hardship on the employer’s business operations. Information on the interactive process and reasonable accommodation is available on HR.BLR under the ADA (Disabilities) topic.