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Can I fire an employee on short term disability

We are a medical office in New York State and my providers were considering firing an employee of 13 months for just not working up to standards. Numerous documentation of complaints from patients, proposals for improvment, absenteeism etc. The day after my providers meeting she came in for 1 hour to prove she had a swollen knee and her doctor is just giving us every 2 weeks for re eval. We have done this for 5 weeks and now another 2-4 weeks.
also, how can I research New York laws for this?

To quote a line from the old Laurel and Hardy movies: Well this is a fine mess you have gotten us into, Ollie. We will also note that many medical providers seem totally lost on HR matters related to illness or disability — which seems ironic.

It is not really New York law that you need to be concerned with, but rather the federal laws against discrimination including FMLA and ADA.

Generally you cannot terminate an employee solely because she is on short term disability. However, you can take any disciplinary action (including termination) against an employee that would have been taken, anyway, had she not been on short term disability. But before you begin your happy dance, we will point out that it is going to look very suspicious that you have waited 7 to 9 weeks before taking action on this issue.

If you had fired the employee the first week she was on short term disability (even by phone or letter), that would probably have worked. However, because you have waited all these weeks, it appears that you are punishing the employee, or firing her, for being on disability. At least, that is the way a slick lawyer will present the case, when he sues you. He will argue that obviously the employees performance was acceptable, or you would have fired her the first week that she went on disability. And obviously nothing has changed in her performance since then…she has not been at work to have any performance issues. So it appears that you are making this decision based on her disability.

The absenteeism portion of your complaint may also be a problem. If your office has more than 50 employees within 75 miles, you should have informed the employee of her right to up to 12 weeks of unpaid, job-protected leave under FMLA. Perhaps your office is too small for FMLA to apply. We are also assuming that the employees condition would not qualify as a disability under ADA.

If the FMLA and ADA do not apply, then you may be able to terminate this employee for absenteeism, provided that you would do the same if another employee missed the same amount of time for a medical issue such as childbirth or a heart attack.

The best practice in HR is for the employee to be discharged soon after a specific incident, and to limit the discharge to one issue. Citing a variety of concerns (absenteeism, lack of improvements, patient complaints) actually makes your case weaker, not stronger. It makes it appear that you are looking for any excuse to let this employee go. For example, it would make sense if a patient complained about this employee today, and you let her go tomorrow. But suddenly deciding months later that the employee has had too many patient complaints makes it appear that you are unfairly punishing this employee for being ill, or discriminating against her.

If you suddenly had new information, the situation would be different. For example, if you learned while the employee was gone that she had been stealing from the company. However, it appears that you were in possession of all of this information before the employee went on disability.

The best practice is for the employer to present an employee with at least 3 written warnings, on different occasions, for the same infraction, before terminating her. If you have documented each employee complaint with a written warning signed by the employee, and you receive another complaint, that would be an excellent time to terminate her. If you have not documented those complaints with written warnings, you could be facing a lawsuit if you let the employee go. And you will almost certainly be paying her unemployment benefits.

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This entry was posted on Friday, February 27th, 2009 at 7:14 am and is filed under
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26 Responses to “Can I fire an employee on short term disability”

  1. FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update March 2 Says:

    [...] » Can I fire an employee on short term disability Human Resource Blog By Caitlin If your office has more than 50 employees within 75 miles, you should have informed the employee of her right to up to 12 weeks of unpaid, job-protected leave under FMLA. Perhaps your office is too small for FMLA to apply. … Human Resource Blog – [...]

  2. Louie Cheyne Says:

    Your Posts are always Amazing!

  3. Caitlin Says:

    You are very welcome, Louie! Check back often– we are constantly posting new info!~ Caitlin

  4. Ann Dickinson Says:

    My sister worked at a large hospital in housekeeping, she fell and broke her collar bone and top of arm on Oct. 15th – the hospital put her on FMLA which expired on January 13th (by their records. She is drawing short term disability and has to have a second surgery because the screws backed out and the metal plate is falling and the hospital terminated her employment at end of FMLA stating she voluntarily did not return to work after leave of absence. Is this legal?

  5. Caitlin Says:

    Hi Ann! Yes, this is legal. When an employee is injured on the job, the employer must pay the medical expenses, and they receive some income from workers comp. However, that does not protect the employees job. When you sister recovers, she can collect unemployment benefits because she was terminated through no fault of her own. (She should save the medical receipts.)
    Sometimes an employee who is on workers comp is entitled to a settlement. If your sister is offered a settlement, she should not sign anything without consulting an attorney. HTH, and thanks for reading the blogs!~ Caitlin

  6. Cynthia Says:

    Hi Caitlin,

    A new employee notified us that she was going on short term disability for back surgery shortly after she became eligible. She had a very poor record of absence prior to the surgery and would have been let go had she not notified us of her intent to go on disability. Her doctor sent a form giving her 1 month on disability due to the surgery. we have not heard from her since and have left messages asking for an updated disability form. No response. Can she be terminated. We have 100 employees.

  7. Caitlin Says:

    Hi Cynthia! Assuming you are not in California, and the employee has exhausted any FMLA or state family leave, and not returned when she was supposed to, you can terminate her in accordance with company attendance policies. You should notify her by certified letter that if she does not return to work by a certain date, she will be terminated. Give her contact information in the letter to call with questions.
    In some cases, if the employee now has a permanent disability, she is entitled to additional unpaid leave under ADA. However, she is still required to remain in touch with the employer. HTH, and thanks for reading the blogs!~ Caitlin

  8. Elaine Says:

    I work in the District of Columbia and do not want to return back to work after taking 4 weeks of short leave disability for surgery. What is the best way to handle this and ensure that I receive my short term disability benefits? Are there any laws preventing my employer to terminating me if I give them 30 days notice of my departure as requested by the company?

  9. Caitlin Says:

    Hi Elaine! It is probably in your best interest to return to work, at least for a while. When an employee does not return from FMLA or short term disability, she can be required to repay any benefits from the employer, including the employers portion of the health insurance premium plus any disability payments.

    If you return and give 30 days notice, the employer can legally terminate you at that point. However, you would no longer be required to repay benefits. You would also be entitled to collect unemployment, at least for the remainder of the 30 days. HTH, and thanks for reading the blogs!~ Caitlin

  10. Jeanette Says:

    I have an employee that has been out on medical leave and I did receive a letter from her physician stating that her estimated return date for work is August 15, 2011. As of today 8/18/11 I have not received any further letter stating her medical leave has been extended further than 8/13/2011. Do I have the right to terminate her employment without paying any penalty?

  11. Caitlin Says:

    Hi Jeanette! No, you do not necessarily have that right. First, you do not say if your company is covered by the federal FLSA or not — and it makes a big difference. If you are covered by the FLSA, post a question that gives more details of your situation.

    Second, you really need to contact this employee and find out more about the situation. If she has a permanent disability, she may be entitled to unpaid tme off as an accommodation. You do not say how long this employee has been off or what type of leave she is on — and that is all important. HTH, and thanks for reading the blogs!~ Caitlin

  12. Jeanette Says:

    Hi Caitlin,
    Thank you for replying back to my question. To give you more information. This employee does not qualify for FMLA, has not worked for me a year, according to previous documentation that I did receive in the beginning, the employee is on short disability and I have not received any further documentation stating change to long term disability. Her last date of work was April 22,2011 and has not returned since. She gave birth to a child on 4/29/11 and that is why she has been out according to the documentation that I have. Then on June 29, 2011 I received a letter from her doctor stating that her estimated return to work date is August 15, 2011. As of today 8/24/11 I have not received any further documentation stating that she will continue to be out of work. We are a pediatric office and we give care to her child and she comes in but does not state or show any documentation of anything regarding her condition indicating that she will still be out of work.

  13. Caitlin Says:

    Hi Jeanette! This situation is more complicated since you are both the healthcare provider and the employer. Still, her doctor should not be communicating directly with you — he should be giving her a note to give to you.

    You still need to contact the employee, preferably by phone. Let her know that you have a release for her to return to work, and ask what her plans are. If she says at that point that she does not intend to return to work, you are justified in terminating her,in most states.

    If repeated attempts to contact her by phone are unsuccessful, you need to send her a registered letter with confirmation.

    An employee has a responsibility to stay in touch with the employer during medical leave. However, since you are also her healthcare provider and she is visiting the office regularly, she may be in compliance with this requirement.

    It sounds like there is a breakdown in communication and for some reason you are not comfortable just asking her, “Suzie, what are your plans? Will you return to work?” That conversation should have taken place some time ago.

    At this point, you can give her an ultimatum with a date to return to work, or be terminated, unless she can show that there is a reason for her to remain off work.

    Normally an employee who has been released to return to work no longer qualifies for short term disability benefits. HTH, and thanks for reading the blogs!~ Caitlin

  14. Heather Says:


    I have an employee who injured herself (off the job). She came in and presented a doctor’s note that stated she would be out for 10 days. After the 10 days were up she came back with another doctors note for 14 day stating that her injury is not getting better. So far the employee has missed 20 days of work and has reported to me that she may require surgery, but will not know if surgery is an option for another week while she waits on more medical tests. The employee has been able to use her sick leave pay, but it has all ran out. 1. She is currently requesting to use her remaining vacation time to deal with her injury. Can we deny her use of her vacation at this time? She is the only housekeeper for a retirement facility and it is causing a financial hardship for us as well as a serious issue with the residents here, as she cleans the common areas and their apartments.
    2. She has a very physically demanding job and it is unclear if she will be able to return to the job and preform at the level required for the position. If she decides to return to work can we require her to present a doctor’s note that states she can physically do her job? 3. What happens if the doctor does not clear her for work? Can we terminate her employment?
    4. We are a small employer 15 employees or less. We do pay for full medical benefits for her, however our plan states that you have to work “required hours to qualify” Starting 10-24 she will no longer have any hours, do we terminate her benefits October 31st. 5. If we do not, do we set a precedence that states we will continue to pay an employee’s benefits even if they are not working hours? 6. Can we terminate her employment for absenteeism as we cannot afford to have another housekeeper on payroll at this time?
    7. We have STD insurance and I would like to encourage her to apply. However, if we term her benefits or term her can she still get STD? Sorry, I know that was a lot of information. I would really appreciate any input. Thanks so much for your time.


  15. Caitlin Says:

    Hi Heather! We have numbered your questions for easy reference.
    1. You could deny this employee her vacation time, but it would not be a reasonable thing to do. You have allowed this person to accrue vacation time, so you must have had a plan in place for someone to perform her work when she was off. And really, your staffing issues are not her problem. It is reasonable and fair to allow this employee to use her vacation time when she is unable to work.
    2. When she is ready to return to work, you can and should furnish her doctor with a list of job duties (such as: Be on her feet all day, lift 20 lbs., climb stairs & whatever else is require) and have him sign off that she can perform all the duties. This is called a fitness-for-duty release. The employee should not be allowed to return to work without such a release from a doctor.
    3. If she is never cleared to perform her duties, in most cases you can terminate her. If she has a permanent disability, you may be required to make reasonable accommodations for a disability under ADA. However, the employee must be able to perform her duties with the accommodation.
    4. You could terminate her benefits on Oct. 31 or whenevery she no longer has the hours to qualify for this benefit. Depending upon your state, she may qualify for continued medical coverage under COBRA or a state mini-COBRA.
    5. Some employers would continue the medical benefit but require the employee to pay the full premium. Yes, this establishes a precedent on how you will handle short term disability for other employees in the future, including any pregnant employees.
    6. You can establish a maximum amount of unpaid medical leave and terminate an employee who exceeds it. Many, many small employers would give an employee with a serious health problem like a heart attack or cancer 4 to 8 weeks off, and some would give the employee up to 12 weeks of unpaid leave. You should grant the same benefit to this worker. You can tell her that you cannot guarantee that she will be returned to her job when she recovers.
    Again, your staffing issue is not the employees problem. As an employer, it is simply good management to always have an alternate in place for every position. It is not reasonable to expect that employees will never be sick, take vacations or need to miss work. You can and should either hire a temporary replacement or go through a staffing service to fill your needs. Inadequate staffing by the employer is not a reasonable excuse to let an employee go. Once this employee recovers, you can let the temporary worker go, or just give her a few hours per week, so it will not necessairly cost you more to have two names on the payroll.
    7. This is exactly the situation that STD insurance is designed for and you should encourage the employee to apply for it ASAP. Normally, the employee would qualify for STD benefits even if you have terminated her employment. However, she would normally still need to make her insurance payments to qualify. This is a thorny issue, so feel free to post more questions. HTH, and thanks for reading the blogs!~ Caitlin

  16. Kathy Says:

    Hi Caitlin
    We have an employee that went on STD for emotional reasons. We are a small company (less than 50 employees) in CA. Her doctor put her on disability for one month (November) and then to be re-evaluated. Today is Dec 1st and I have not heard from her. She has no accrued sick leave or vacation as she took all accrued hours before her disability. She has been an employee for less than 1 year. Her work was sub-standard at best. While she has been out we have been using our receptionist to do her work and she is doing a great job. My question is two-fold. First, is there any way we can terminate this employee without incurring a lawsuit and second if not can we move her to the receptionist position as long as we keep her at the same pay rate? Thanks for your help. Kathy

  17. Caitlin Says:

    Hi Kathy! In any other state, you could have already terminated this employee. In California, this is highly problematic. First, if you terminate her now, it looks like retaliation for her taking time off for a short term disability. Second, if you have no documentation of her sub-par performance, and you let her go or reassign her for a performance issue, that also looks like retaliation.
    Many California employers hire workers for the first year on a contract basis, and offer the employee a permanent job only after they have successfully completed that first year. If this is a contract employee, you can simply not renew her contract. However, if you have no contract in place, you should consult an attorney about the best way to terminate this employee. For the interim, you should return her to her job if she has a doctors release. HTH, and thanks for reading the blogs!~ Caitin

  18. Ryan Says:

    Hi Caitlin,

    Here is the situation I have a question about. We have an employee that has been on STD for about a month. The employee was not approved for FMLA because he had not been with our company for a year or worked 1250 hours. Can we terminate this employee today? We need someone in his position ASAP and we do not have an update on when he will return. – Ryan

  19. Caitlin Says:

    Hi Ryan! If the employee does not qualify for FMLA, you can treat this like any other absence. If you would normally terminate an employee who missed 4 weeks of work (without FMLA) then you can do so now. If you have permitted other employees to take 4 weeks off without using FMLA in the past, then failure to do so with this employee may be illegal discrimination.
    If the employee has a permanent disability, you may be required to permit unpaid leave as a reasonable accommodation.
    The source of STD also makes a difference. If your company has a history of providing STD payments to employees, you may be obligated to continue employment. If the employee is collecting STD payments from an insurance policy or from the state, that has no bearing on continued employment.
    Whether or not the employee is terminated is really irrelevant to your staffing needs. Even if the current employee will return at some point, you can and should hire and train a temporary replacement ASAP. This is a complex issue, so feel free to post more details for a more specific answer. HTH, and thanks for reading the blogs!~ Caitlin

  20. Linda Kimsey Says:

    I have an employee who has missed a lot of work due to sickness. I allowed her last year to take off 4 weeks after a surgery and then her Dr extended it another 2 weeks. She then went to another Dr and he took her off for two more weeks and then for an undetermined amount of time until test were completed and results were in. I informed her she must return by a definite date or be terminated. She returned 3 weeks before the date I gave her and then began again missing work due to illness, Dr visits and tests. She continues to be absent and creates a hardship for the business without her. We have tried to be compasionate, but we are really experiencing difficulty resulting in the company losing money. I am just wondering if I can terminate her legally. We are a small company only 21 employees. We have to replace her now.

  21. Caitlin Says:

    Hi Linda! You are right — this situation has gone on way too long. In the majority of states, you can terminate the employee for non-attendance. That simply means the employee is not at work regularly enough — without blaming her for what may be genuine illnesses requiring absences.
    If you have not already done so, you should begin documenting these absences by issuing written warnings after each one. Again, you are acknowledging that the employee may have a genuine health problem that causes her absence — but you have a legitimate need for an employee who can be at work regularly. This is a reasonable expectation.
    Frankly, you have been much more generous than most small employers would be. For large companies with 50 or more workers, the federal FMLA requires that you offer up to 12 weeks of unpaid time off, total, in a 12-month period. However, smaller companies like yours often offer only 4 or 6 weeks of unpaid leave, before letting the employee go.
    Ideally, you would formulate an attendance policy now, and consistently apply it to all employees moving forward. That policy should be objective, whether it is 17 days off per year, 6 weeks off per year or whatever.
    Remember that the doctor does not dictate whether you will give the employee time off. The doctor can determine that the employee is physically unable to work, but only you as an employer determine if she will be terminated for non-attendance.
    Some states have family leave laws that might entitle the employee to more time off. If the employee has a permanent disability, she may be entitled to unpaid time off as a reasonable accommodation. However, nothing in your post indicates a disability or that she has requested time off under ADA. HTH, and thanks for reading the blogs!~ Caitlin

  22. Linda Kimsey Says:

    Appreciate your help!

  23. Caitlin Says:

    You are very welcome, Linda!~ Caitlin

  24. Mia Says:

    I have a female employee under the age of 40 that has been working for us for 2.5 years and her performance is not meeting expectations. We are a large Insurance company based out of Minnesota. She is on a written warning for 60days. During this time, her manager has been coaching her and doing a very good job with documentation. The big
    “if” is that we as an employer know that this employee has some known issues of disability and also a POC. At the end of her 60 days written warning and before moving to a final warning for 30 days, she went on intermittent FMLA for physical therapy. My question is:

    1. Can we still move with a final warning, or wait she uses up her FMLA TIME?
    2. Assuming we go to a final warning, can we fire her at the end of 30days if she does not meet expectations but still covered under FMLA?
    3. What would be the best HR approach in this case?

  25. Evelyn Says:

    I am a consulting firm and I have 15 employees that I have assigned to various City locations and the City provides them office space etc and they provide services. My employee got mad because City personnel (my client) put City equipment in his cubicle and yelled at the City Personnel where it was heard throughout the office, then he left the site and went to the doctor and was put off work for two weeks on stress. This happened last week and today I got notification that he is seeking Disability.I have investigated the incident and asked my employee to provide an account of the incident, but he has refused as he has been ordered to rest. The details that have come in warrant termination, but he is on leave, if he had returned the following day I would have terminated him. What do I do now? Can I terminate him before the two weeks?

  26. hrlady Says:

    Hi Evelyn,
    You can terminate the employee for the situation. You should have everything documented, including the incident. The only thing you want to be concerned with is that this termination is not related to his disability or him taking time off. That can be viewed as retaliation. So document and you may want to consult with an attorney.
    Thank you for reading the

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