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Inactive vs. Terminated
Feb 12, 2002

I went on short term disability from my employer, who happens to also be my health insurance company, last October due to fatigue and difficulty with concentration and focus. I've been poz for about 3 years and my counts are quite good, yet I've been diagnosed with several other hiv-related deficiencies and have had a few infections, such as shingles. I am getting better, but there is no way I am able to work my regular job yet. After exhausting FMLA and STD, I have applied for benefits under the group's LTD plan. Rather than terminating me after both of those benefits expired (1/4/02), my employer placed me in an *inactive* status for one year without pay or benefits. This status offers me no benefits, as far as I can tell. I've been in the process of converting life insurance and other benefits as though I've been terminated so I won't lose them completely. I want to access money from my 401(k) to help pay for these expenses, as well as to cover me until LTD is approved. My employer sent me the forms to cash out or rollover my 401(k), then would not approve it because I have not been "terminated" yet. But when I try to borrow money against the plan (which is allowed for employees), I'm told I can't do that either because I am not receiving a paycheck to withhold the payment from! It seems that I am being treated as an employee for some purposes and not for other purposes. I've been told that to get my money I need to terminate my employement. I do not want to initiate this step, for fear there will be consequences later that will cost me some of my benefits. HR tells me they are afraid if they terminate me, I will be able to claim they discriminated against me for my HIV status! Everything I've read says they are not obligated to hold my job beyond the FMLA period, which is long past. But to ask ME to terminate just doesn't seem right! I am trying to contact and employment lawyer, but am having trouble getting my calls returned. Any insight from you would be greatly appreciated. Thanks in advance.

Response from Ms. Franzoi

This is a question for an attorney. However, first you should contact the HR department for information. Ask them for the written policy on what happens once an employee exhausts his sick leave and FMLA leave. Find out when an employee is considered terminated. Find out if you can voluntarily quit and then qualify for all of the benefits such as disability, a distribution from your 401(k), etc. You should read also read your summary plan descriptions for all of your plans and take them to your attorney to help you determine what your rights are.



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