This Wisdom of the Crowd, compiled from responses posted on the Employment & Labor eGroup,* addresses issues regarding treatment of employees who are on long-term disability ("LTD") leave. The issues discussed include:
I. Change of Status When LTD Leave Approved
II. When to Terminate Employees Who Are Collecting LTD Benefits
III. Period of Time Holding Jobs Open for Employees on LTD Leave
IV. Compliance with The Americans With Disabilities Act ("ADA")
*(Permission was received from the ACC members quoted below prior to publishing their eGroup comments in this Wisdom of the Crowd resource.)
CHANGE OF STATUS WHEN LTD LEAVE APPROVED
Question:
Once an employee is approved for long-term disability leave, do you change their status (e.g., "inactive" or "leave of absence" or "terminated")?
Wisdom of the Crowd
Response 1: [...]We terminate employees from active employment status (and no longer hold their job for them) after they have been on Long-Term Disability for six months (one full year since original date of first absence, including six months on short-term disability), provided that the employee does not have, at that time, a firm return-to-work date that is within a reasonable period of time.1
Response 2: An employee who is approved for long[-]term disability goes on an inactive payroll and remains there as long as the employee is eligible to receive long[-]term disability benefits or until retirement, whichever is first.2
Response 3: Most of our employees are in California. Our employees are coded as on leave.3
Response 4: I don't think that termination and LTD are necessarily connected. The issue isn't whether the employee [i]s qualified for LTD, but whether he or she is on a type of leave that legally protects from termination.4
WHEN TO TERMINATE EMPLOYEES WHO ARE COLLECTING LTD BENEFITS
Question:
If you terminate employees who are collecting LTD benefits, when do you do it? Immediately, or after some specified period of time (e.g., six months, one year)?
Wisdom of the Crowd
Response 1: After the employee is approved for long[-]term disability, the position is considered vacant and may be filled.5
Response 2: A set termination date after a certain length leave of absence is not permitted by the CA Dept. of Fair Housing and Employment and case law[,] even if an employee has been on leave 12 months or more.6
Response 3: Every LTD policy that I've ever dealt with doesn't require that the employee be employed in order to qualify for benefits, as long as he or she was employed at the time the disability began. So keeping someone on the payroll just to allow [him or her] to qualify for benefits probably isn't necessary.7
PERIOD OF TIME HOLDING JOBS OPEN FOR EMPLOYEES ON LTD LEAVE
Question:
If you do not terminate employees who are collecting LTD benefits, do you hold the employee's job open for any particular length of time, in case they are able to return to work? If so, how long?
Wisdom of the Crowd
Response 1: After termination, employee still gets LTD benefits, but no longer has a guarantee of being able to come back to a job if/when they are physically able. We do an ADA review before processing the termination.8
Response 2: Whether and for how long a position is left open after [Family and Medical Leave Act ("FMLA")] or state job guarantee is determined on a case-by-case basis. We do not automatically fill the position at the end of a statutory job guarantee. Even if the job is filled, if a similar position is open when the employee is medically released to return, we evaluate whether the employee is eligible for the similar position.9
Response 3: If FMLA has run (and any state-mandated protected leave) and the person has no foreseeable return date (so that the ADA exposure is minimized), we often place the employee on discretionary leave for a month, with the caveat that we may be seeking to fill the position so we can't guarantee reinstatement.10
Response 4: We hold the employee's position for a year.11
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT ("ADA")
Question:
If you have certain timelines built into your process (e.g., terminate after 6 months), how do you ensure compliance with the ADA requirement to treat each employee on a case-by-case basis?
Wisdom of the Crowd
Response 1: Prior to separating the employee, we send a letter asking about whether he [or she] plans to return to work and to advise us if any accommodation is needed in order to allow the employee to return to work. Most times, we never hear back from the employee. If we do get a response, we address it accordingly. S[i]nce there is no requirement to allow for "indefinite leave" under the [Americans with Disabilities Act Amendments Act of 2008 ("ADAAA"), we feel this language and process covers our bases.12
Response 2: If the employee is no longer eligible to receive long[-]term disability benefits, depending upon the amount of time the employee has been out of the workplace, the employee may seek reinstatement but must apply for a vacant position for which the employee has the requisite skills and background and must pas[s] a functional capacity test to demonstrate the ability to perform the duties of that position, if appropriate. If no position is identified, the employee's employment is terminated.13
Response 3: Consider FMLA and state-specific job-protected leave that would prohibit termination while on approved leave and require continuation of health benefits. Our handbook and plan documents lay out whether benefits (e.g. vacation days, pension credits) continue to accrue while on leave.
If an outside vendor determines that employee is eligible for LTD, we still analyze case to determine whether the employee has a fairly definite date he or she may be able to return (e.g., some cancer treatments can take several months to complete, but long-term prognosis is good, so it may be reasonable to continue to approve the leave). In CA, case law holds that an indefinite amount of leave is not a reasonable accommodation. (In cases where health care providers estimate return on specific dates, but extend repeatedly without sufficient information or explanation about prognosis, the length of leave may becomes indefinite).
Employers set specific timelines at their peril. Policy must be case-by-case, but I believe specific guidelines for the factors to consider can be specified.14
1 Response from: Kevin Chapman, Assistant General Counsel, Dow Jones, New Jersey, United States (September 12, 2013).
2 Response from: Anonymous (September 2013).
3 Response from: Frieda Taylor, Corporate Counsel, Automobile Club of Southern California, California, United States (September 12, 2013).
4 Response from: Anonymous (September 2013).
5 Response from: Anonymous (September 2013).
6 Response from: Frieda Taylor, Corporate Counsel, Automobile Club of Southern California, California, United States (September 12, 2013).
7 Response from: Anonymous (September 2013).
8 Response from: Kevin Chapman, Assistant General Counsel, Dow Jones, New Jersey, United States (September 12, 2013).
9 Response from: Frieda Taylor, Corporate Counsel, Automobile Club of Southern California, California, United States (September 12, 2013).
10 Response from: Anonymous (September 2013).
11 Response from: Gayle Wintjen, General Counsel, Oak Hill, Connecticut, United States (September 12, 2013).
12 Response from: Gayle Wintjen, General Counsel, Oak Hill, Connecticut, United States (September 12, 2013).
13 Response from: Anonymous (September 2013).
14 Response from: Frieda Taylor, Corporate Counsel, Automobile Club of Southern California, California, United States (September 12, 2013).