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Terminating an EE on STD

I have a company of 6 employees. One of whom went on short term disability due to a car accident on her way to work. I asked her to report weekly to me regarding her status and date to return to work. She agreed. 6 months later she has not contacted me or her supervisor. Can I fire her if she is still on disability?

Short- and long-term disability programs offer income replacement to employees who become unable to work due to an injury or illness unrelated to their job. Though such benefits don’t necessarily provide reinstatement rights, there are federal and state leave and discrimination laws that must be considered.

The federal Family & Medical Leave Act (FMLA) entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave for certain family and medical reasons.

The FMLA applies to all public agencies, including State, local and Federal employers, and local education agencies (schools); and, private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

With only 6 employees (assuming the aforementioned criteria are not met) you’re not required to comply with the FMLA. Some states have adopted their own leave laws; however, most have the 50 employee criteria like the FMLA. Still, it’s important to be aware if any state leave law exists.

Another federal law to be considered is the Americans with Disabilities Act (ADA). 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. A reasonable accommodation can often include a short term leave of absence.

The ADA covers employers with 15 or more employees. With only 6 employees you’re not required to comply with the ADA. Some states have adopted their own discrimination laws; so, it’s important to be aware if such a law applies in your case.

Though the FMLA and ADA may not apply to you, any promises, even implied ones, that you made to the employee must be considered. Did you guarantee the employee a specific amount of time off? If so, it’s important to adhere to your promises. If such time has been exhausted and the employee has not communicated with you, then it’s best to make every attempt to contact her. Call, email, and send her a certified letter. Make it clear in the letter that you haven’t heard from her as per your leave agreement, the leave time has been exhausted (if that’s the case) and that if she doesn’t contact you by a specific date her employment will be terminated. This may sound like a lot but the point is to avoid a discrimination claim.

If the employee fails to communicate with you by the set date then termination may be warranted. Remember to document your attempts to reach her.


This entry was posted on Monday, October 17th, 2016 at 12:19 pm and is filed under
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