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I have an employee who was hurt outside of the worksite (not job related) and is unable to do their job without limitations. Can I lay this person off until they are able to preform their duties? We are in Delaware.

It must be determined if the employee is eligible for any federal or state leave entitlements. Delaware doesn’t have its own leave entitlement laws. Thus, federal leave laws may apply.

The federal Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 workweeks within a 12-month period of job protected, unpaid leave to care for newborns, newly adopted children and seriously ill family members, or to recover from their own serious illnesses. A serious health condition is an illness, injury, impairment, or physical or mental condition that makes the employee unable to perform the essential functions of his job.

An eligible employee is one who has worked for a covered employer for at least 12 months, has at least 1,250 hours of service for the covered employer during the 12-month period preceding the leave, and works at a location where the covered employer has at least 50 employees within 75 miles.

FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, with 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year. The law also covers state and local governments as well as public and private schools.

An employer cannot discipline or otherwise retaliate against, i.e. terminate, an employee for taking leave under the FMLA. Doing so would violate federal law. However, if the employee is not eligible for FMLA protected leave or has exhausted his leave entitlement an employer is within its rights to consider the employee’s inability to perform his job as a performance issue.

Whether the need for time away from work is due to an ADA protected disability must also be considered. The federal Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees with physical or mental impairments that substantially limit a major life activity or major bodily function.

Private employers, state or local governments, labor unions, and employment agencies with at least 15 employees must comply with the ADA.

Though the ADA doesn’t explicitly entitle employees to time away from work, it does require employers to make reasonable accommodations to allow employees with disabilities to do their jobs. Depending upon the circumstances, time off from work, reassignment to a vacant position or job restructuring may be considered reasonable accommodations. Employers aren’t required to provide a reasonable accommodation that would impose an undue hardship on the operation of the business. Undue hardship is defined as an action requiring significant difficulty or expense for the employer considering its size and resources.

An employee requiring a significant amount of time off from work who is unable to perform essential job functions may not be covered under the ADA. Thus, disciplinary sanctions for time and attendance or performance issues would be warranted.

Employers must be careful not to be too quick to terminate an employee who cannot perform essential job functions due to a non-work related injury. If neither the FMLA nor ADA applies in this matter, termination may be warranted. Remember to clearly document the decision making process.

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This entry was posted on Saturday, August 9th, 2014 at 10:27 am and is filed under
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