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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19304
Experience:  Employment/Labor Law Litigation
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Can an employer force you to resign if you are out on ST disability

Resolved Question:

Can an employer force you to resign if you are out on ST disability (employee worke in Rhode Island)
Submitted: 7 years ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 7 years ago.
How long have you been out from your job?

I can not call you or send anything directly to an email. Both have been deleted from your post.

Edited by Jagcorps_esq on 3/29/2010 at 3:01 PM EST
Customer: replied 7 years ago.
It is actually someone I know that I am trying to help out. He has been out of work since 12/15/09 with back and neck injury that he did not get at work (as far as we can tell). He cannot go back to work yet due to the nature of his job (driving hours a day and lifting) and his doctor is not clearing him yet to go back to work. His employer is saying he resigned when he never did. Wouldn't a formal resignation have to be written anyway? Can the employer force the resignation if he never resigned, which would end his ST disability and disqualify him for unempolyment?
Expert:  Allen M., Esq. replied 7 years ago.
The employer can not force a resignation, though they can try to claim a resignation through lack of communication.

Ultimately though, he can legally be terminated because his federally protected period of leave is done. He has been out of work over 12 weeks in 2010 alone and that is the extent of protected leave under the FMLA.

He can continue his claim with STD because he went on it while employed and that's what matters. But his employer can terminate his employment and stop other benefits at this time.

As for unemployment, he's not eligible for that whether he resigned or was terminated. You have to be ready, willing and able to work to collect unemployment and if he is not medically cleared to work, that is a bar to unemployment anyway.
Customer: replied 7 years ago.
Is this the case in all 50 states? He is employed in Rhonde Island. And just to clarify, even if the employer forces him to resign, he still should be covered under ST disability until it is supposed to run out in June, or does that end when the his employment ends? Would ST disability continue if he was fired? Will he not be eligible for LT disability in June if he was forced to resign or was fired and still cannot work? ?
Expert:  Allen M., Esq. replied 7 years ago.
The FMLA is a federal law, so it's the same in every state. Rhode Island has it's own state version of the law that allows no more than 13 weeks in a row in a two calendar year period, which he is also beyond since he's been out since December (I had already looked up that law and is doesn't help him).

For LTD, I can't tell you that. That's not a function of state law, but of contract law and it will depend on how his LTD insurance policy is drafted. If they require employment on the date that you apply for it, then he is likely going to be out of luck. However, most policies look back to the date of the original STD application for the date of need and use it. He was employed and covered at that time.
Customer: replied 7 years ago.

But he still should be eligible for STD until June whether he was forced to resign or fired?


And it seems like there is no point in going after the employer legally to prove that he did not resign.

Expert:  Allen M., Esq. replied 7 years ago.
Yes. Such insurance coverage is based on your eligibility at the time you start it, not later on.

It's the same as car insurance. It doesn't matter if you cease your coverage, as long as you were covered at the time of the accident that is what matters for coverage for that accident.

The only basis for going after the employer concerning his not resigning is that he might be cleared by his doctor to work and have some time where he can work, but doesn't have a job. He'd need to claim termination rather than resignation (because voluntary resignation is generally a bar to unemployment). So, he should send a letter stating that he did not resign and they have simply terminated his employment. He should note in the letter the last time he did contact them to refute their job abandonment claim.
Customer: replied 7 years ago.

Thanks so much for all your help. Anything else you can think of that would be helpful in this situation that I have not considered?


Expert:  Allen M., Esq. replied 7 years ago.
I can't think of anything. I believe we've discussed the bulk of things.

If you have additional follow-up questions, you can always come back and ask them.
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