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Nov17

Termination of Employment

I have an employee who says she has a pinched nerve and is under a Doctor’s care. She has been off of work nearly two weeks. I have requested a copy of the doctor’s excuse 3 times and she has not produced it yet. She has stated she is not sure when the doctor will release her. Are we obligated to keep her job open for her?

There are two federal laws that must be considered prior to terminating the employee in question, the FMLA and ADA.

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.

The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves, in part:
• any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
• a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
• any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
• any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

So, if the employee meets the above criteria she’s entitled to FMLA leave. The proper documentation must be provided to the employee and she must return it in a specified time frame. For more detailed information on this please feel free to review our other posts or ask a question in the comments section.

The second law to consider is the Americans with Disabilities Act (ADA). Private employers, state or local governments, labor unions, and employment agencies with at least fifteen employees must comply with 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, has a record of such an impairment, or is regarded as having such an impairment. The individual must be able to perform the essential functions of the position with or without reasonable accommodation to be protected under the ADA.

The ADA doesn’t provide an all-inclusive list of disabilities that constitute a covered disability. Thus, employers must engage in an interactive dialogue with employees to determine whether a medical condition is a covered disability and, if so, reasonable accommodations that can assist the employee in performing work duties. Keep in mind, the definition of a serious health condition under the FMLA differs than the definition of a disability under 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. A short time off from work may be considered a reasonable accommodation.

An employer isn’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.

So, assuming the employee’s medical condition qualifies as a protected disability under the ADA, consider offering him a short leave. Usually, a short leave is 2-3 weeks.

Inform the employee that you cannot continue his employment unless the appropriate medical documentation is received. Since you’ve already requested this information verbally, put this request in writing. State that unless you receive the required documentation by a specified date the employee will be terminated.

Make sure to document any conversations with the employee regarding the matter.

Even though the employee has already been away from work for two weeks, it’s important to attempt to determine if a reasonable accommodation under the ADA is an option. Making a clear good natured attempt to offer the employee a reasonable accommodation will reduce the likelihood of the employee claiming wrongful termination.

It’s also important to consider any past practice of offering time off and requesting documentation for such to other similarly situated employees. If another employee was awarded time off due to medical issues and was not required to provide documentation (or given a long time to do so), the same benefit should be offered to this employee. Ensuring equitable treatment of employees and showing a consistent practice is a good defense to a wrongful termination claim.

This entry was posted on Tuesday, November 17th, 2015 at 9:40 am and is filed under
Labor Laws, Termination.
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