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When can a disabled worker be termiated?
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When can a disabled worker be termiated?
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
We have a 25 year old female worker who suffered a work related injury (questionable) while working in our shipping department. She had been off work for some two and one half months when the WC docto
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Forums » Topic Forums » Legal Forum » When can a disabled worker be termiated?
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When can a disabled worker be termiated?
posted at 6/23/1999 2:36 AM EDT
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Posts: 1
First: 6/23/1999 Last: 6/23/1999 |
We have a 25 year old female worker who suffered a work related injury (questionable) while working in our shipping department. She had been off work for some two and one half months when the WC doctor reported she could return to work with a 20 lb lifting limit. OK, so we drew up a modified job description to accommodate her disability. The doctor examines her again (and the modified job description) and now states she "cannot perform pushing and simple grasping for more than 15 minutes at a time for a total of two hours a day, cannot push or pull with the left hand for more than 5 minutes every 20 minutes, cannot reach above the left shoulder at all, and can lift no more than 10 pounds occasional." Well, this just about rules out any warehouse work.
She is extremely defensive and paranoid about how her case is being handled, brings her mother to job modification meetings, etc, etc. We feel she is just waiting to slap us with an ADA or EEOC lawsuit. We are a book distributor with about 100 employees, primarily a warehouse operation, and at this point have come to the conclusion that no warehouse position exist, nor could be modified, to accommodate this disability without eliminating the essential functions of the jobs.The WC carrier is willing to retrain and rehabilitate her. Our current policy is to terminate someone who has been out on disability for more than six months. Our plan is to send her notices of other job openings in the company as they come up (although she probably cannot meet the qualifications with respect to education, experience, etc), give her the opportunity to apply, and terminate her if she has not found a new position after 6 months out on disability. The question is, are we complying with the law? How long do we have to keep trying to find her a position? If she accepts WC retraining and rehabilitation how long do we have to keep her on the books? If we go this far does she have a wrongful termination case against us for terminating a disabled worker? Would very much appreciate any advice. |
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When can a disabled worker be termiated?
posted at 6/23/1999 5:09 PM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
1. While she was out for the 2-1/2 months, was she given FMLA-qualified leave? If not, you may have to grant her 12 more weeks if she can't perform the essential functions of the job.
2. What's her prognosis? A recent ADA ruling discounts those whose disability can be corrected, but at least for now, she is "regarded" as being disabled and may be covered. As an accommodation, you may have to temporarily transfer her to a job she can safely do, regardless of your internal job application policy. 3. What's your state's position on job protection for Comp cases? Job protection in work-related injuries varies from guaranteed reinstatement to no-protection. Check the comp laws in your state to determine what your responsibility is to employees with a comp claim. 4. She may not be "disabled" to the extent of your policy. Albeit slim, she DOES have a capacity for work, and has been released to the alternative duty. Your comp laws probably allow for a second opinion - you can send her to the company's physician. Also, some states require that, if the employee needs alternative duties that the employer can't provide, the employee must go on a "light duty job search" to find a job he/she can do in order to keep receiving W/C benefits. 5. Offer her something that fits her restriction andprovide the retraining - if she refuses, you're in a much better position to terminate for refusing to return. 6. Is there a bargaining agreement that limits reassignment? Is your state an "at-will" state? Even in at-will, you'll need some very substantive (meaning, defend-able) reasons for terminating -- if you're that nervous over an EEOC or ADA claim, you can bet she will atttribute only adverse employment decisions to her injury, and you can expect some type of wrongful discharge complaint. You'll need to be well-documented for any decision you make. 7. "How long do we have to keep her on the books" sounds like a pre-determination. My last point would be to keep her on until she does something that warrants termination - and, even then, discuss it with your employment attorney before acting. You have comp/ADA/FMLA laws all interacting here, and your employee may be covered by any or all. You need to present a strong case that you tried to get this woman back to work - I'd bring her back at something she could do with the retraining. ..and I can identify with your situation. We're in a similar business, and I deal with this constantly. |
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When can a disabled worker be termiated?
posted at 6/23/1999 5:49 PM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
I suggest you consult with an employment lawyer, sooner rather than later, as you believe you are about to be a target of a lawsuit seeking real money damages. If you would like a referral, just give me a call or e-mail. You lawyer will walk you throught this in more detail, but I'll repost one of our prior responses to help give you the "big picture."
Matthew T. Miklave, Esq. Epstein Becker & Green, P.C. 250 Park Avenue New York, New York 10177 (212) 351-4663 (212) 661-0989 (fax) MMiklave@ebglaw.com EB&G Responds Posted by EpsteinBecker&Green,P.C. on 6/23/99 4:25 AM GMT As we have noted before, whenever dealing with an employee with a medical condition, an employer would be wise to consider all of the "sources of law" which might give that employee job protection. An employer must comply with all of the laws -- like it or not. (a) Workers compensation -- some state workers compensation statutes give employees the right to return to the same job upon completion of the workers compensation injury; (b) Disability insurance -- whether short or long term, an employee may have an claim under your policy, a sort of salary continuation; (c) FMLA -- 12 weeks of unpaid leave for a serious medical condition, the right to continue to participate in group health plans on the same terms as other employees, the right to return to the same position or a substantially equivalent position upon completion of the leave; (d) CBA -- any rights an employee may have under the collective-bargaining agreement in place between the employer and a union (if any); (e) ADA -- the right to a reasonable accommodation (which may be a short term unpaid leave of absence) if the medical condition amounts to a disability; (f) Employment Agreements or Policies -- any rights the employee may have under an employment agreement, including employer policies that might amount to employment agreements under state law. That should keep you busy enough. By the time we all work these issues out,Congress should have passed another law to keep us busy. |
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