Human Resource Blog

Disability - Returning Employee

I just received a phone call from an old employee that was on medical disability asking for his job back. Of course his benefits have run out. Hes been gone for years. Do I have to give him a job? I dont have any open positions for him. Also, I dont trust him at all due to the circumstances surrounding his disability claim. Are we required to fire a current employee just to give him a job? Any advice would be greatly appreciated!

No, you are absolutely not required to return this former employee to his previous job. If he was terminated years ago, you are not required to give him any job and should certainly not fire a good current employee for a marginal former employee.

Under the federal FMLA, the Family and Medical Leave Act, an employee is sometimes entitled to up to 12 weeks of unpaid, job-protected leave in a 12-month period. An employee who returns within 12 weeks or less must be reinstated to his job. However, an employee who is gone more than 12 weeks can be terminated. Presumably, this employee exhausted the 12 weeks of leave, was put on medical disability and eventually terminated for non-attendance. At this point, he is an ex-employee and has no special claim on employment with your company.

You should tell this ex-employee that he is welcome to fill out an application, but you do not have a job opening  at this time. You do not have to tell him that you will never have a job opening for him, but nor are you required to offer him a position in the future, even if one becomes available.

Some union contracts might require reinstatement of a former employee, but we assume if such a contract were in place, you would know it.