Human Resource Blog

Where HR Professionals Seek Answers

A Practical Source For Your Daily HR Needs.Lets Build An HR Blog Community Together! Want To Share Your HR Knowledge Or Gain Knowledge Through Other Professionals?Lets Discuss HR!


Terminating Employee due to Permanent Job Restrictions

We had an employee who sustained a workers comp injury and we have been working this employee on light duty. However, after his last appt the doctor has indicated that he is permanent restrictions from using 2 crucial tools to help him perform his job.

Since the restrictions are permanent we can no longer continue to accomadate this requirement and want to terminate the employee.

Does ADA or FMLA play a part in this? The employee is currently working so he is not out on FMLA and he hasn’t requested FMLA….

Ouch! Okay, first, it is not the employees responsibility to request FMLA. It is your duty as an employer to offer FMLA to the employee. Even if the employee does not use the term FMLA, when he has any injury or illness (or other situation) that qualifies him for FMLA, the employer must by law make the employee aware of the availability of unpaid leave.

The overwhelming majority of employers would have put this employee on FMLA at the beginning of his workers comp leave, if he missed any time from work at all. That is because doing so limits the employees total leave to 12 weeks. To count workers comp as FMLA, the employee must be informed, in writing, at the beginning of the leave, that it is being counted as FMLA. You did not do that, so the employee is entitled to another 12 weeks of job-protected leave under FMLA, in addition to any leave that he has already taken.

Yes, ADA may play a part in this. ADA or the Americans with Disabilities Act applies to employees who can fulfil the essential requirements of their job, with a reasonable accommodation. Again, the employee does not have to use the words reasonable accommodation or ADA. Simply the fact that you know he has these restrictions would be sufficient for you to work with him to find a reasonable accommodation. The EEOC can also refer you to agencies that will assist you in coming up with a reasonable accommodation.

There is not a reasonable accommodation for every disability and every job. Example: A truck driver who can no longer drive, is not entitled to a reasonable accommodation. However, suppose a truck driver uses a forklift 10% of the time. Suddenly, he has a disability that makes him unable to use the forklift. The truck driver is probably entitled to a reasonable accommodation.

However, even if this employee is not entitled to an accommodation under ADA, you may want to make one. If the employee cannot work due to his injuries, or cannot work at his usual occupation, he may well qualify for a lump-sum settlement. And that will increase your workers comp insurance premium, for many years to come. So it may well be cheaper for you to make an accommodation for the employee or find another job with comparable pay that this employee can do.

Tags: , , , ,

This entry was posted on Wednesday, January 28th, 2009 at 4:34 pm and is filed under
Human Resources Management, Workplace Health & Safety.
You can follow any responses to this entry through the RSS 2.0 feed.
You can leave a response, or trackback from your own site.

5 Responses to “Terminating Employee due to Permanent Job Restrictions”

  1. FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update Jan 30 Says:

    [...] » Terminating Employee due to Permanent Job Restrictions Human … Okay, first, it is not the employees responsibility to request FMLA. It is your duty as an employer to offer FMLA to the employee. Even if the employee does not use the term FMLA, when he has any injury or illness (or other situation) … Human Resource Blog – [...]

  2. Claudia Says:

    We have an employee that has been out over a year. However, employee was never placed on FMLA! Employee was given Permanent Restrictions we will not be able to accommodate; therefore, can we terminate employment?

  3. hrlady Says:

    Hi Claudia,
    Since you mention it, I’m assuming the employee qualifies for FMLA leave. If so, no, you may not terminate the employee. FMLA leave can only be backdated in limited circumstances and both the employer and employee must agree to it. Assuming the employee won’t agree to losing 12 weeks of leave, he must be awarded his rights to FMLA leave and the appropriate notification procedures must occur. Once the leave has been exhausted and the employee has a covered disability under the ADA, then you must have an interactive discussion regarding reasonable accommodations. If, at that time, the employee is still on permanent restrictions and no reasonable accommodations exist, then termination may be warranted. HTH!

  4. Nora Says:

    I have an employee who is not yet eligible for FMLA…has been employed less than one year. He has an per-existing injury that has caused him to miss several days of work. He has now brought me a long list of restrictions we cannot accommodate. The restrictions are to last “until cleared by doctor”. Can we legally terminate him?

  5. hrlady Says:

    Assuming the employee’s condition is covered under the ADA, it’s the employer’s responsibility to engage in an interactive exchange of information with the employee to determine what, if any, reasonable accommodations can be made to allow the employee to perform his job. So, it’s important to show a good faith effort to accommodate the employee by meeting with him to discuss his request and consider alternate accommodations.
    If the employee denies your suggested accommodations or there are absolutely no reasonable accommodations that will allow the employee to perform the essential functions of his job, then termination may be warranted. Just make sure that the employee’s requests would clearly impose an undue hardship (significant difficulty or expense).

Leave a Reply

  • [ Back ]
  • WP-SpamFree by Pole Position Marketing

Home Ask a Question Archives

© 2008, All Rights Reserved