Human Resource Blog

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.