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Termination during Probation

We hired someone who started yesterday. She apparently has a health condition had a bout of it last night requiring emergency medical assistance. She called today and told us that she won’t be able to work for the next two to three days. This is a critical role in a very fast moving point of service environment and must be filled immediately. Can we terminate the new employee and hire someone else?

Absent a collective bargaining agreement or employment contract stating otherwise, employees are considered at-will. Meaning, either the employer or employee can terminate the employment relationship with or without cause or notice.

The reason for termination cannot violate equal employment opportunity laws. It is illegal for an employer to discriminate against an employee based on sex (including pregnancy and childbirth), sexual orientation or identity, genetic information, disability, age (over 40), national origin, race, color, religion, or citizenship status. Furthermore, employees cannot be terminated for participating in union activity or for refusing to participate in any illegal activity.

The protected characteristic in this scenario is disability.

The employee wouldn’t been entitled to protected leave under the federal Family & Medical Leave Act (FMLA) since she doesn’t meet the eligibility criteria by only being employed for one day. However, your obligations under the federal Americans with Disabilities Act (ADA) must be considered.

The ADA requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense. Employers with 15 or more employees are covered under the ADA. There is no service criteria for employees since both applicants and employees are protected by the ADA.

There is no all-inclusive list of disabilities covered under the ADA; thus, an individual assessment must be performed. The burden is placed on the employer to initiate an exchange of information needed to determine whether the ADA is applicable.

Under the ADA, an individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities or functions, has a record of such an impairment, or is regarded as having such an impairment. The employee would be considered a qualified individual with a disability if she meets legitimate skill, experience, education, or other requirements of the position, and can perform the essential functions of the position with or without reasonable accommodation.

If the employee’s condition is covered under the ADA she is entitled to reasonable accommodations to perform her work duties. Accommodations may include a short term leave of absence, especially if the employee is only requesting two or three days. Now, if attendance in the workplace is an absolute essential job function than a leave of absence may be considered an undue hardship. Just keep in mind that whether an accommodation is truly an undue hardship is determined by several factors including the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation. Basically, if the business will survive with the employee being absent for two days then the time off should be granted.

If you’re in doubt whether the employee’s condition is covered under the ADA then it’s best to either allow the employee the time off as requested to limit your risk for an ADA violation or consult with an employment lawyer regarding termination.

This entry was posted on Tuesday, November 3rd, 2015 at 8:39 pm and is filed under
Labor Laws, Termination.
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