Human Resource Blog

Termination after short term disability

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An employee is out on paid short term disability for the second time in a year (he is HIV positive and has had many complications). He is on paid leave that will expire in two weeks. Can the employer fire him at the end of his short term leave. Is this legal and does he have any recourse? Thank you.

If the employer has over 50 workers, he or she is required to grant employees up to 12 weeks of unpaid, job-protected leave per year under the federal FMLA or Family and Medical Leave Act. Usually, employers have this leave run concurrently with — at the same time as — any paid short term disability. However, the employee must be informed in writing, at the beginning of the leave, that it is being counted as FMLA leave.

Assuming that this was done, yes, if the employee takes 12 weeks and 1 day off of work in a 12-month period, he can be terminated for excessive absenteeism (or another reason.) Federal law prohibits an employer from terminating a worker solely because he or she is HIV positive or has AIDS. But, the employer can still terminate a worker who takes too much time off work, for whatever reason.

If the employee has a disability under the EEOC definition, then under the ADA or Americans with Disabilities Act, the employer is required to make reasonable accommodations for the employee. In some cases, that will include additional time off or a modified work schedule. However, the EEOC definition of a disability is pretty strict, and not everyone with HIV qualifies.

An employer can also take any job action against an employee on leave, that the employer would have taken, had the employee been at work. So if the employer is laying people off, employees on short term disability or FMLA leave are not necessarily exempt.