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Lay off or Fire

Q: In Tennessee, can I let an employee go for not doing a good job or for lack of work? They notified me of them needing 2 surgeries back to back. That will make it impossible for them to do their job. They do not have medical insurance with us. I was notified less than 10 days in advance of an elective surgery. Then they are planning on a 2 week vacation and only one week is covered. We are a small company and this puts us in a bad position. What can we do?

Without knowing how many employees you have or more details on the employee’s condition let’s discuss a few laws that may be relevant.

The federal Family and Medical Leave Act (FMLA) provides qualified employees of covered employers up to 12 workweeks of unpaid, job protected leave for specified family and medical reasons, including to care for one’s own serious health condition.

Employees are eligible to take FMLA leave if they have worked for the employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

If the employer and employee are covered under the FMLA, then it must be determined if the employee’s surgery constitutes a serious medical condition. Generally, elective procedures are not covered under the FMLA unless inpatient hospital care is required or complications occur that would then meet the definition of a serious health condition under the law.

The federal Americans with Disabilities Act (ADA) must also 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.

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. In most cases, elective or cosmetic surgeries don’t constitute disabilities under the ADA. However, there are exceptions such as severe disfigurement.

If it’s determined the employee has a covered disability then a reasonable accommodation such as a short term leave of absence must be considered.

Assuming neither of the above laws applies then approving the employee’s request for a leave of absence due to an elective procedure is completely at the employer’s discretion. Just keep in mind, it’s best to offer this employee the same leave entitlements as other similarly situated or temporarily disabled employees have been offered in the past.

Now, in regards to the vacation time, employers in Tennessee are not required to provide vacation benefits to their employees. However, if they do they must comply with the terms of their own established practices and policies. There is no requirement that an employer must approve an employee’s vacation request.

So, if, due to business needs, it’s imperative the employee be at work then you are within your rights to deny the vacation request. Further, if it’s not possible for the employee to take two weeks of vacation then it’s also within your rights to deny the employee’s request. If the employee fails to follow your directives and doesn’t show for work, then termination may be warranted.

Lastly, Tennessee is an at-will employment state. Meaning, absent an employment contract or collective bargaining agreement stating otherwise, either the employer or employee can terminate the employment relationship at any time with or without cause.

An employer cannot terminate an employee based on personal characteristics as defined under both federal and state laws. Under these 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.


This entry was posted on Saturday, November 7th, 2015 at 8:36 pm and is filed under
Labor Laws, Termination.
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