How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Samuel II Your Own Question
Samuel II
Samuel II, Attorney at Law
Category: Employment Law
Satisfied Customers: 27009
Experience:  More than 20 years of experience practicing law.
10707909
Type Your Employment Law Question Here...
Samuel II is online now
A new question is answered every 9 seconds

I am an employer in FLorida small business with 15 employee.

Customer Question

I am an employer in FLorida for a small business with 15 employee. I have an employee who is pregnant and was taken off work by her OG/BYN but is not due to until Feb 2016-she no longer has any PTO time-we do provide benefits to our employees-we contribute $300 per month towards her health insurance and the employee is responsible to the balance of the plan she chooses-what is my responsibility towards paying for her benefits if/when she returns to work after the birth?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Samuel II replied 1 year ago.

Hello

This is Samuel and I will discuss this and provide you information in this regard.

So is she going out on partial disability or Family Medical Leave?

Customer: replied 1 year ago.
She is completely off work "until further notice" her due date is Feb 2, 2016 so I assume she will be out 6 weeks after the birth as well, with our company being a small business, I was slways under the assumption FMLA did not apply to us
Expert:  Samuel II replied 1 year ago.

FMLA applies to any employer with at least 50 employees.

If an employee is provided group health insurance, the employee is entitled to the continuation of the group health insurance coverage during FMLA leave on the same terms as if he or she had continued to work. If family member coverage is provided to an employee, family member coverage must be maintained during the FMLA leave. The employee must continue to make any normal contributions to the cost of the health insurance premiums. If paid leave is substituted for FMLA leave, the employee’s share of group health plan premiums must be paid by the method normally used during paid leave (usually payroll deduction). An employee on unpaid FMLA leave must make arrangements to pay the normal employee portion of the insurance premiums in order to maintain insurance coverage. If the employee’s premium payment is more than 30 days late, the employee’s coverage may be dropped unless the employer has a policy of allowing a longer grace period. The employer must provide written notice to the employee that the payment has not been received and allow at least 15 days after the date of the letter before coverage stops.

Expert:  Samuel II replied 1 year ago.

I misread you statement that you had 50 employees. And so given that you only have 15 employees, the FMLA would not apply.

However, if you are providing health benefits to all your employees, you cannot exclude her.

Customer: replied 1 year ago.
this still applies even though we only have 15 employees?
Expert:  Samuel II replied 1 year ago.

I misread you statement that you had 50 employees. And so given that you only have 15 employees, the FMLA would not apply.

However, if you are providing health benefits to all your employees, you cannot exclude her.

Customer: replied 1 year ago.
Am I still required to hold her position for her?
Expert:  Samuel II replied 1 year ago.

You do not have to hold her position, if you can show that your business will be at a hardship if the position is not filled.

Expert:  Samuel II replied 1 year ago.

In other words, you need to be able to show that it is not discrimination against her because she is a pregnant female. And to do that you would need to be at a hardship if the position is not filled.

Customer: replied 1 year ago.
I have already hired a person to fill in her position-how do I address not holding her position?
Expert:  Samuel II replied 1 year ago.

I suggest that you Document your reasons for terminating your employee. Under the employment-at-will doctrine, you can terminate an employee for any legal reason and without prior notice. Be sure to speak with your employee about any misconduct or performance-based issues as soon as possible. If you discovered the misconduct while your employee has already requested leave or is already out on maternity leave, you should discuss the misconduct while your employee is using her leave.

Customer: replied 1 year ago.
ok-thank you
Expert:  Samuel II replied 1 year ago.

So if you have information that she was not performing before she requested leave, and if you followed policy as to addressing those inadequacies with her while she was there, that is important to have in a file.

Expert:  Samuel II replied 1 year ago.

Please note, if you failed to discuss the misconduct during a recent performance evaluation, a court is more likely to view your termination as illegal or retaliatory for using leave.