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Sep28

Terminating Employee on Short Term Disability

Am I able to lay off an employee who has been on short term disability? He did not qualify for FMLA and has been out almost the max time for this one claim. He claims that he will come back and then go back off for an unrelated injury once the waiting period is over for short term disability to have a new claim. We really do not have any work for him; however, we are not laying off anyone else in his type of position. Are we able to term him without any litigation?

Short and long term disability insurance policies offer employees income protection if they become unable to work due to an injury or illness. These policies don’t provide job protection. However, depending on the reason for the employee’s absence, he may be protected under federal/state laws.

The main federal laws to consider are the federal Family & Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA).

Since you mention the employee isn’t eligible for FMLA leave we won’t go in to details about that one.

The ADA prohibits discrimination on the basis of disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA regardless of his or her tenure with a company.

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. Though not every illness or injury qualifies an employee for protections under the ADA, common covered disabilities include cancer, diabetes, and emotional illnesses.

It’s the employer’s responsibility to determine if an employee has a covered disability under the ADA. If so, it’s also the employer’s responsibility to engage in an interactive exchange of information with the employee to determine what, if any, reasonable accommodations can be made to allow the employee to perform her job.

Since the employee has been out for some time, you’ve probably had some communication with him regarding his condition and ability, or lack thereof, to return to work. Thus, the requirement for an interactive dialogue has probably been satisfied. Though reasonable accommodations under the ADA may include a leave of absence, it doesn’t require an employer to provide a never-ending leave of absence. So, the requirement of providing an accommodation may have been satisfied as well.

Remember, some states have adopted similar leave and discrimination laws.

Now, it’s worth mentioning that laying off an employee and terminating an employee are very different. A lay off or downsizing is at the fault of the employer and may be a temporary cessation of employment. Conversely, a termination is at the fault of the employee and is a permanent end to employment. A lay off should be handled differently than a termination in this situation. Since you’re not laying anyone else off in similar positions, it sounds like it would be best to terminate the employee for not being able to work.

Prior to termination, it’s best to clearly ascertain from the employee if he expects to be able to return to work and, if so, when.

If the employee is clear that he has no intention of returning to work, then termination is warranted. If the employee states he expects to return to work in 1 month, for example, the applicability of the aforementioned federal (and any similar state laws) would need to be considered.

Assuming there is no applicable federal or state law, or employment contract that prohibits you from terminating the employee in question, whether you allow him to remain on leave or terminate his employment is at your discretion.

There are a few points to consider.

Though it sounds like the employee has been on leave for some time, have you provided other temporarily disabled employees with even more time away from work? This employee should be treated in a manner consistent with how other similarly situated employees have been treated in the past.

Did you promise this employee that his job would be waiting for him when he is able to return to work? A promise, even an implied one, may constitute a contract. So, consider the specific terms of the employee’s leave.

It’s advisable to speak with the employee and clearly ask if he expects to return to work. You can even give him a deadline by which he must return to work or be terminated. Make sure you follow through with the deadline and document the conversations.

Basically, you want to be able to show that you treated the employee fairly, attempted to accommodate him, and that his termination is not based on his ailment but on his inability to return work after an extended period of time.

HTH!

This entry was posted on Wednesday, September 28th, 2016 at 12:58 pm and is filed under
Labor Laws, Termination.
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