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John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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Hello - I work as a software engineer. A few months ago

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Hello -

I work as a software engineer. A few months ago my employer put me under "Development Plan". At the end of the plan even after working hard - they failed me and gave me 2 months notice. 2 months will end in the first week of November after which my employment will end.

But a situation happened on 15th of October. A car accident happened. 100% fault of other party as per police report. My Van was totaled and me and my family were injured. I got back and neck injuries. All internal. I have done MRI and waiting for doctor appointment.

Since October 15th I am on sick leave. But I have also opened a short term disability case with my employer. And we are expecting a baby in the month of December.

My question is : As my employment is ending in first week of November, If I go on short term disability today due to the injuries happened in major car accident - will my employer be able to let me go as they have already given me a letter that my employment will end of first week of November. Or I they will have to continue my employment until I come out of short term disability and continue my and my family medical insurance and job benefits ?
Hi, thanks for submitting your question today. My name is XXXXX XXXXX I’m happy to assist you with your question today. I'm sorry to hear about your job issues and accident.

The law, specifically, the Family and Medical Leave Act (FMLA), generally requires employers to preserve the employee's position for up to 12 weeks while he is on medical leave. One exception to that is, the employer can terminate employment while the person is on FMLA leave if it can show that the person would have been terminated in any event. In your case, you can take an FMLA leave up to the date that they already gave you as your last date of employment, but the employer may legally terminate your employment at that time; the FMLA would not bar termination after that time.

As to your short term (and perhaps long term - if your medical need lasts beyond a few months) disability, your right to those payments does not terminate at your date of termination. Because you were injured while the policy is active, you are entitled to payments as long as you are medically not able to work for any employer. Your health insurance may be terminated on the date of your termination as well. However, if the employer has more than 20 employees, they must offer you COBRA extension coverage for up to 18 months after termination. COBRA coverage is not cheap - you'd have to pay up to 102% of the premium for the plan, but you'll have coverage for the birth. Once, the affordable care act plans become active January 1st, you may want to consider going on a plan offered on the health care exchange because they'll be cheaper, cover pre-existing conditions and perhaps you'll get subsidy/assistance with payment of premiums and costs if your income is below the threshold for unsubsidized coverage.

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