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Oct13

can you terminate an employee on disability if their job has been eliminated

Can you terminate an employee on disability if their position has been eliminated

The answer is a qualified yes. As an employer, you can take any action against an employee on short term disability or FMLA that would have been taken anyway, if the employee were not on disability. Suppose that while Cindy is on FMLA, the company decides to lay off all secretaries. Cindy is a secretary, so she can be laid off.

However, the FMLA leave or disability cannot be a factor considered in determining whom to lay off. If the company decided to lay off only 50% of the secretaries, they could not include Cindy in that group merely because she was on FMLA, or was on short term disability. The decision would have to be made without considering those factors.

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This entry was posted on Wednesday, October 13th, 2010 at 8:00 am and is filed under
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8 Responses to “can you terminate an employee on disability if their job has been eliminated”

  1. Family Health Benefits Says:

    Would the answer be different if the employer was not subject to FMLA, or if the employee had been on leave longer than 12 weeks?

  2. Caitlin Says:

    Hi Family! The answer would still be a qualified yes. Even an employer who offers no FMLA could terminate an employee on medical leave, if the employee would have been terminated anyway. Under ADA, an employer cannot consider the employees medical condition when determining whom to lay off. And under some circumstances an employee with a permanent condition is entitled to additional leave under ADA. However, under very specific circumstances an employee who has taken more than 12 weeks of medical leave can be terminated for that absence. HTH, and thanks for reading the blogs!~ Caitlin

  3. Walt Says:

    So I have a contrct with the federal government and becasue of funding several of the positions are being terminated. I have one employee that will be on STD for about 2 weeks when this happens and another employee that has been on FMLA since May 2010 taking off several hours per week to care for a family member. Can we terminate these two individuals when the others will be terminated, and if so could ther be any legal actions we would face?

    Thanks, Walt

  4. Caitlin Says:

    Hi Walt! Yes, you can terminate these two individuals on FMLA or short term disability when you terminate the others, and there will be no more risk than for any other termination.
    One of the great things about the U.S. is that anyone can sue anyone else at any time, for any reason. However, it is extremely unlikely that an employee would win such a suit, especially if you have documentation of the loss of contracts and the other terminations. HTH, and thanks for reading the blogs!~ Caitlin

  5. Shawn Says:

    My job really was over before I went on leave.
    Company said when I return, they should have work for me “new” position. Ended up moving from STD to LTD still out on disability. Company notified me they are terminating me effective immediately as they have no job openings now so they no longer holding job for me, and terminating benefits.
    also mentioned, they can charge me full insurance premiums (the share they usually pay) not just the employee share, for when I was on disability.
    Is this all allowed and true?
    thanks

  6. Caitlin Says:

    Hi Shawn! This is a mess and you may want to consult an attorney or the U.S. Department of Labor. It sounds like your job ended, yet the employer decided to place you on short term disability. At that time, they had the intention of giving you another job when you returned. If this job change would have occurred even if you were healthy, then it is legal. However, if that were true, you might have been entitled to the new job if you were able to return.

    It appears that the company decided to place you on short term disability. If you were on FMLA, then by law the employer had to continue to pay their portion of the health insurance premium. You should have received written notification that you were on FMLA.

    If an employee chose not to return from FMLA, then he or she could be charged for the health insurance premiums. Most companies will not impose this charge if the employee is physically unable to return. The FMLA is enforced by the U.S. Department of Labor. HTH, and thanks for reading the blogs!~ Caitlin

  7. Cathy Says:

    We are a very small office of 3 people, one of which went on disability and is due to return mid June. It turns out while she was gone her position is not needed. She worked 35 hours a week. The Office Manager can handle running the whole office with a warehouse help. We did need to hire someone PT to help in the warehouse. Can we eliminate her position and lay her off? When can I do it? Thanks!

  8. hrlady Says:

    You’re able to layoff the employee as long as you can honestly say and prove that the employee would’ve been laid off regardless of her being on disability. Basically, there must be a valid business reason for the employee being laid off and the reason absolutely cannot be because she went on disability leave. If you decide to lay her off, it’s best to do so as soon as you truly know the employee’s job is no longer needed. The longer you wait the less reasonable the decision to lay her off appears. HTH.

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