Don't Forget About The ADA When Terminating Employee On Leave
Managing a medical leave of absence can be difficult for employers. For employers subject to the Family and Medical Leave Act (“FMLA”), it is well understood that an employee is entitled to 12 weeks of leave if he or she suffers from a serious health condition. Many employers believe that they can simply discharge an employee who cannot return to work after 12 weeks. However, complying with the FMLA is not always enough. An employer must also consider its legal obligation under the Americans with Disabilities Act (“ADA”).
If the employee is or may be “disabled” under the ADA, the employer should not immediately consider termination at the end of 12 weeks. Often, the employer will have insufficient information to evaluate an employee’s disability status. In such cases, it is often better to proceed with caution and assume the individual may be disabled under the ADA.
The ADA mandates that employers must provide reasonable accommodations to “otherwise qualified individuals” with disabilities unless the accommodation imposes an “undue hardship.” Accommodations may require the employer to restructure or reallocate job duties or consider additional leave (beyond 12 weeks) as a reasonable accommodation. In considering whether to grant additional leave, the company must evaluate the prospect of the employee returning to work in the foreseeable future. Employers are not obligated to grant an indefinite leave of absence as an accommodation. The ADA also requires the employer to consider reassignment. If there is another available position for which the employee is qualified that the employee can safely perform, the employer should consider placing him or her in that job. Employers are not required to “bump” another employee, promote the disabled worker, or create a new position under the ADA.
The first step to exploring accommodations is to contact the individual and attempt to initiate the “interactive process” (talk to them!) If the employee has been on an extended leave of absence, it is always a good idea to initiate this contact in writing. For example, the employer can advise the employee:
Our records indicate that you have exhausted all leave available under the FMLA and under Company policy. Your employment with the Company may be subject to termination at this time. If you are disabled under the Americans with Disabilities Act or other applicable laws and would like to discuss potential accommodations that may allow you to return to work and perform the essential functions of your job or otherwise continue your employment, please contact the undersigned within 10 days from the date of this letter. If you do not contact the Company, your employment will be terminated as of that date.
If the employee fails or refuses to respond or provide information concerning his or her medical status, the employer may proceed to termination. Prior to discharge, the company should consider whether the termination will impact any disability benefits available to the employee. If the employee does respond to the letter, the employer will need to set up a time to explore accommodations and engage in the interactive process.
During the interactive process, the employer should review the essential functions of the job and discuss the employee’s ability to perform those functions with or without accommodations. This process is an open dialogue between employer and employee. At the end of this process, the employer should be able to determine whether accommodations can be provided and whether the individual will be able to return to work. If the employee cannot return to work in the near future and can no longer perform the essential functions of their job, the company may be in a position to discharge the employee. There are many liability issues that can arise during this process and it is always an excellent idea to consult with legal counsel before terminating a disabled employee. Employers may also want to consider a separation package in exchange for a release from the employee.