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Oct23

Terminating an Employee on Short Term Disability

Hello, I am at a company in Massachusetts with 43 employees. We have an employee who has gone on short term disability. Do we have to keep her job open for her to return or can we legally terminate her based on the amount of work she has missed? She has been with the company for about a year and half and is in her 70s. Please advise.

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 43 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 and Massachusetts is one of them.

In Massachusetts, employees who work for employers with 11 or more employees may earn and use up to 40 hours of paid sick time per calendar year. There are other leave laws in Massachusetts; however, they pertain to parental obligations which are being assumed to not be the issue in this case.

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.

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.

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. A short term leave of absence may be considered a reasonable accommodation under the ADA.

The first step should be to determine whether the employee’s condition qualifies as a disability under the ADA. If so, then the employee should be provided with a short term leave of absence. The duration of the leave should depend on business operations but you must also consider what leave options have been awarded to other employees in similar situations in the past. The ADA doesn’t require employers to provide never-ending leaves of absences.

It’s also worth considering what, if any promises, even implied ones that you made to the employee. Did you guarantee the employee a specific amount of time off? If so, it’s important to adhere to your promises.

It’s always important to treat employees fairly and in a consistent manner. In this case, it’s even more so since the employee in question is covered under the federal Age Discrimination in Employment Act (ADEA). The ADEA forbids age discrimination against individuals 40 years or older when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. Even an employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on employees age 40 or older and is not based on a reasonable factor other than age.

Basically, this employee should be treated in the same manner as any other employee would be. If other temporarily disabled employees have been given 4 weeks of leave, for example, then this employee should receive the same entitlement.

Remember to document communications with the employee. And, if/when you decide to terminate the employee be sure you can back up your decision in case a discrimination claim is filed.

HTH!

This entry was posted on Sunday, October 23rd, 2016 at 9:09 pm and is filed under
Labor Laws, Termination.
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