FMLA + Layoffs?

August 1, 2013 3:13 PM

Though what I really need is a crystal ball, hypothetically would you as an employer be likely to lay off someone who is not currently working due to injury and illness and covered under Short Term Disability insurance and FMLA?

I've been home from work for 3 weeks because of a non-work related accident leading to a broken leg and surgery and yadda yada.

I just heard via text from a co-worker that our boss has been notified that 2 people need to be laid-off in our department from the Powers That Be. This isn't exactly a surprise, (our annual report stated pretty big losses), but I'm in a particularly perilous situation. I feel like being stuck at home might make me easy to forget about. We're a small department (9 people including the boss). I'm one of the more junior hires.

Would this disability/FMLA leave in anyway shield me? Would laying me off be so annoying that you'd go for someone who is more senior/makes more money than me? Am I overestimating the protection FMLA gives me?

I have a spouse that has health insurance through his employer, so I guess I'll be able to continue going to PT and such. I've been looking for work half-heartedly ever since the annual report figures came out. I guess I won't DIE, but I'm freaking out a bit, especially after seeing a chunk of savings going into covering bills and dental work.

Hope me?

posted by fontophilic to Work & Money (8 answers total)

Best answer: Your own insurance should continue to cover your PT, since the injury occurred prior to your potential job loss. At least as I understand it.

The FMLA only insures they can't replace you with someone else or lay you off because you are injured. I am pretty sure they are fine laying you off as long as they don't do it because you are injured. At least as I understand it.

The advice you didn't ask for, but I am going to give anyway, because it's good advice, is: Don't borrow trouble/stress. You have enough to deal with. Heal up. You can't do anything about what is coming at work, so worrying about it will accomplish nothing.

I learned this lesson while awaiting biopsy results. Worrying won't change the results, so you'll just make yourself miserable and not affect the outcome.

I could be wrong on the first two points, but an fairly certain on that last one.
posted by cjorgensen at 3:20 PM on August 1, 2013 [4 favorites]

If you are laid off, you can go onto your spouse's insurance.

That depends on where your spouse works. For example, my company does not consider it a life event if your spouse loses their insurance, but my husband's company does. Have your spouse check into their company's policy.
posted by soelo at 4:56 PM on August 1, 2013 [1 favorite]

Best answer: If you are laid off, you can go onto your spouse's insurance.

That depends on where your spouse works. For example, my company does not consider it a life event if your spouse loses their insurance, but my husband's company does. Have your spouse check into their company's policy.

Losing group health coverage is a HIPAA special enrollment event, which, unlike cafeteria plan election change events, are not optional. So, as long as the spouse's employer is subjection to HIPAA portability (I can't think of an employer that wouldn't be) spouses are eligible generally under the plan, and the individual declined coverage when first eligible, a person who loses group health coverage should be able to enroll in the spouse's plan.
posted by Pax at 5:05 AM on August 2, 2013

Best answer: Your own insurance should continue to cover your PT, since the injury occurred prior to your potential job loss. At least as I understand it.

This is only correct if you continue your own insurance through COBRA after losing your job. If you don't continue your own insurance then it won't keep paying for things. But yes, you should definitely be able to go onto your spouse's insurance with your loss of coverage as the qualifying event allowing the mid-year change. How much PT will be covered is determined by your husband's insurance plan.*

If they are doing the layoff correctly then being out on disability doesn't affect the decision in any way. They are allowed to lay you off while on FMLA leave they are just not allowed to lay you off BECAUSE you are on FMLA leave. Since laying someone on FMLA off is a risk factor they will probably be looking extra closely at you to make sure they are laying you off for the right reasons and have proper documentation to back that up. Everyone with a risk factor gets extra scrutiny during a layoff to make sure the reasons are valid.



*There is a way switching to his insurance could actually get you MORE covered physical therapy. If you plan has any maximums on the amount of PT then switching to the new plan could reset you to zero so now you get up to the max of the new plan. Again, this would depend on how your plans are structured.
posted by magnetsphere at 6:56 AM on August 2, 2013

Best answer: Bad news. FMLA doesn't protect you if your position would have been eliminated anyway. From this DOL FMLA fact sheet (PDF):

An employee on FMLA leave is not protected from actions that would have affected him or her if the employee was not on FMLA leave. For example, if a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to work that shift or the original overtime hours. If an employee is laid off during the period of FMLA leave, the employer must be able to show that the employee would not have been employed at the time of reinstatement.

posted by donajo at 7:28 AM on August 2, 2013

Are you on disability or FMLA ? My understanding is you can be on one or the other, but not both. (ie when disability ends, and you still can't return to work, then you take FMLA/unpaid- leave etc depending on what benefits your company offers etc).

A data point: In past experience, when someone on disability was being laid off, the person was still paid/covered under the disability policy until they were "well". (It was under the short term policy, but the time it was going to take for the person to recover meant they would roll into the long term disability policy -- torn quadriceps with surgery and an lengthy recover),

(This was a case where our whole site was laid off en mass).
posted by k5.user at 7:59 AM on August 2, 2013

Best answer: Are you on disability or FMLA ? My understanding is you can be on one or the other, but not both. (ie when disability ends, and you still can't return to work, then you take FMLA/unpaid- leave etc depending on what benefits your company offers etc).

This isn't accurate. Short-term disability is a pay benefit. It allows you to keep a source of income during a qualifying medical leave if your employer does not offer paid sick leave, or if you run out of your paid leave. FMLA is a federal law that offers job protection and insurance coverage for specified family and medical reasons. One does not affect the other and they can run concurrently. cite
posted by donajo at 8:43 AM on August 2, 2013

Response by poster: Thanks all. I got a text from my boss Friday morning, with an ominous "can you take a conference call at 9am?".

But, it turns out, I did not get laid off. It seems our tiny department is being granted a reprieve, and we have at least some time to decrease our charges to overhead by the amount of 2 full time employees. My manager apparently spoke too soon, (or my co-worker source didn't understand the concept) or this deal was worked out with upper management in the last hours.

Major shake downs are in effect elsewhere, and info is only coming to me in panic-driven texts, which isn't exactly helping. I know at least I'll have a job for the next few months.

I was trying to figure out exactly how I'd go out an get a new job while not really being able to be in an office comfortably for 8hrs yet, and doing PT as almost a second job. "Hey hire me, but I'll be out of the office Monday, Wednesday and Friday afternoons for 3 months?"

I know my short term disability ends when employment ends, I'm well, I die, or 90 days from date of accident/I go on LTD. Also, my husband's employer's insurance is comparable (mine is slightly better), and spousal loss of coverage is definitely a qualifying event.

Thanks for all the answers. I'll try to not stress about this, though I am a worrier-type by nature.
posted by fontophilic at 7:22 AM on August 4, 2013