By Christine Wilkinson
Question: Can an employer terminate an employee who cannot return to work due to a medical impairment once his leave is exhausted? Can an employer terminate an employee if the employee exhausts all leave, but still has restrictions?
Answer: Maybe…but only if the employer engages in an individualized inquiry under the Americans with Disabilities Act (ADA) before doing so.
In November 2012, the Equal Employment Opportunity Commission (EEOC) announced that it entered into a settlement agreement with a nationwide trucking company that discharged employees automatically upon exhausting their leave or when they were unable to return to work without restrictions.? Although the company admitted no wrongdoing, in order to resolve the lawsuit it agreed to:
- Pay $4.85 million,
- Revise its policies to comply with the ADA,
- Provide mandatory periodic training to employees on the ADA,
- Report particular employee complaints about the ADA to the EEOC,
- Post a notice about the settlement, and
- Appoint an internal monitor to ensure compliance with the consent decree.
Why did the company agree to this settlement? It agreed because its policies very likely violated the ADA.? The ADA requires an individualized, or case by case, approach to working with individuals with disabilities.? Moreover, requiring employees to be fully recovered, with no restrictions before returning to work, violates the ADA?s mandate to retain disabled employees who are qualified, but unable to perform the essential job functions without an accommodation.
So what can an employer do to resolve these issues? First, rewrite policies that require an employee to be able to work without restrictions, or that require termination if employees exhaust available leave.? Second, as an employee nears the end of his available leave, engage in the interactive process by sending a letter informing him that his leave is about to expire, and meeting with him to figure out whether you can accommodate the employee, either with more leave or with some other type of accommodation.? Indefinite leave is not a requirement, but the ADA may require you to provide some additional time off ? or other accommodation ? to a disabled employee.
Managing employee leaves requires the ability to wade through numerous state and federal laws governing employee leave.? Using a case-by-case approach may seem time-consuming, but it is far less time-consuming and cheaper than defending a subsequent lawsuit.
SMART TIP: Always write to the employee after the interactive meeting to document what you discussed, including any ideas, solutions or accommodations offered or requested, and any solutions accepted by the parties. This practice will help you avoid future disputes about who said what.