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Disability Leave - ADA
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Disability Leave - ADA
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
I have an employee who was diagnosed with cancer 3 months after coming to work for us. I sent him the proper FMLA leave paperwork. He has now been on leave for 11 months. I just found out his cancer i
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Disability Leave - ADA
posted at 8/2/1999 1:23 AM EDT
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Posts: 1
First: 8/2/1999 Last: 8/2/1999 |
I have an employee who was diagnosed with cancer 3 months after coming to work for us. I sent him the proper FMLA leave paperwork. He has now been on leave for 11 months. I just found out his cancer is terminal. What are my legal obligations to keep him on as an employee? |
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Disability Leave - ADA
posted at 8/2/1999 2:14 AM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
If he hadn't been with you for a year when the leave started, he wasn't eligible for the leave, but, since you sent the paperwork, let's say it's assumed the leave has been authorized and approved.
Do you have a policy with a neutral end-date? It's a good idea to create one; something like "if any employee for any reason cannot return to work within XX months, their employment is automatically terminated." Check with your own counsel to dress it up, but this is yet another instance where this type of policy comes in handy. Your obligation under FMLA ended at 12 weeks - although he may be regarded as having a disability, he is not able to fulfill the essential functions of the job if he can't come to work, so the ADA shouldn't be an issue. You didn't mention an employment agreement or contract, so I'll assume there is none. Aside from an implied promise in your FMLA notice (how long did you give him, and what did you require for notification), there should be no reason to retain the employee. You may want to send one of those diagnosis forms to the caregiver - where it asks for the chances of returning and when before you make a decision. As an aside, the timing is lousy.. it looks like the decision was made based on his terminal condition. Things would have been less apparently heartless if a decision was made earlier. What "IS" is nothing - what "SEEMS" is what juries decide on. If you have counsel, run it by them quickly - for defensibility. |
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Disability Leave - ADA
posted at 8/2/1999 6:14 AM EDT
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Posts: 946
First: 6/14/1999 Last: 12/14/2005 |
You don't say whether or not his terminal illness prohibits him from working at his job. Look, he may want to at least work part time, if not full time, until his condition does in fact render him unable to work. If he is a "valued" employee you should discuss the entire situation with him and try to work something out that doesn't make you feel like a "hard-hearted" employer and provides the employee with some meaning to the time he has left. If there is flexibility in your work enviornment to accommodate the employee so that he can return to work on some basis, I recommend trying to do it, especially if you have permitted similar flexibility to other employees when they have had personal or medical issues. |
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Disability Leave - ADA
posted at 8/3/1999 2:50 AM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
The prior responses are excellent; no need to repeat them in detail. I agree with Jim that FMLA eligibility looks questionable since they only worked 3 months and have received over 12 weeks of leave (at least to the extent your policies haven't modified those requirements). Essentially, your liability risks, if any, are probably under the ADA-- is there any reasonable accomodation that would enable this person to do his job? (An employee is qualified if they can perform the essential functions of the job, with or without a reasonable accomodation). If there is any likelihood this litigation would reach a jury, some caution is in order-- this might be an unsympathetic case for an employer. |
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Disability Leave - ADA
posted at 8/12/1999 5:39 PM EDT
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Posts: 30
First: 8/12/1999 Last: 2/4/2000 |
Would this even get to a jury if the employee was not entitled to ADA to begin with? Wouldn't that be an issue of law and the employer would win on summary judgment? (I'm not too familiar with Civ. Pro.). |
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