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ADA and termination
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ADA and termination
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
We have a policy that states " An employee who is unable to resume his or her normal work duties within the maximum fifty-two (52) week leave period will be removed from the Company’s payroll.
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ADA and termination
posted at 2/19/2013 9:14 AM EST
on Workforce Management
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Posts: 23
First: 2/21/2012 Last: 5/2/2013 |
We have a policy that states "An employee who is unable to resume his or her normal work duties within the maximum fifty-two (52) week leave period will be removed from the Company’s payroll. Our lawyer says this is in violation of ADA. We believe he is wrong since FMLA only guarantees 12 weeks and employees can be terminated after that. We are very very generous and offer upto 52 weeks leave with STD/LTD. Please comment. We are in state of IL. Thanks for any replies. Liz |
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Re: ADA and termination
posted at 2/19/2013 9:40 AM EST
on Workforce Management
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Posts: 221
First: 9/29/2011 Last: 5/2/2013 |
Your lawyer could very possibly be right. ADA requires reasonable accomodation for any condition which limits a basic life function. If an employee can't, for example, stand for long periods of time in a position requiring such, then a reasonable accomodation must be determined (ex, a stool) and applied. If no such accomodation can be reached, only then can termination be an option. I think your attorney's problem is that your 52 week termination is absolute - there's no provision for determining a reasonable accomodation and as such it would be a violation of ADA. |
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Re: ADA and termination
posted at 2/19/2013 10:48 AM EST
on Workforce Management
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Posts: 180
First: 9/21/2011 Last: 5/14/2013 |
Agree with nork that the problem is the absoluteness. It would be better to have a policy that each case will be reviewed after the 12 weeks of protected FMLA leave is completed to see if extra leave would be considered a reasonable accommodation under ADA. There used to be a really good EEOC article that talked about the interaction between ADA and FMLA. I would google it for you, but my google is taking forever to load today. Just google "EEOC ADA FMLA" and it should be one of the first links to pop up. If you want to see a court case regarding this, you might search under UPS FMLA termination. It's an interesting one and basically is the first I remember that challenged the employer on the 12 weeks and then term. While you may be feeling generous with 52 weeks, that may or may not be enough. |
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Re: ADA and termination
posted at 2/19/2013 11:04 AM EST
on Workforce Management
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Posts: 215
First: 9/20/2011 Last: 5/14/2013 |
In Response to ADA and termination: We have a policy that states " An employee who is unable to resume his or her normal work duties within the maximum fifty-two (52) week leave period will be removed from the Company’s payroll. Our lawyer says this is in violation of ADA. We believe he is wrong since FMLA only guarantees 12 weeks and employees can be terminated after that. We are very very generous and offer upto 52 weeks leave with STD/LTD. Please comment. We are in state of IL. Thanks for any replies. Liz Posted by evabraham Just change your wording to "An employee who is unable to resume his or her work duties, with reasonable accomodation,....................................." |
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Re: ADA and termination
posted at 2/20/2013 1:49 PM EST
on Workforce Management
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Posts: 23
First: 2/21/2012 Last: 5/2/2013 |
We are discussing a particular case where the employee has claimed WC -(denied by 2 IMEs), was paid 8 weeks STD for a surgery which usually does not require more than 6 weeks. He was off for 5.5 weeks without medical documentation. We have sent several (4-5) letters requesting he let us know if we can make any accomodations, offered light duty, etc. Employee has chosen to go to lawyer instead. We even have him on tape working under his car and walking with no limp etc. So I personally feel that we have tried to accomodate his medical issues. He has even changed his phone number so we are unable to comtact him except by mail. |
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Re: ADA and termination
posted at 2/20/2013 2:33 PM EST
on Workforce Management
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Posts: 221
First: 9/29/2011 Last: 5/2/2013 |
If he has an attorney, you need one. I'd definitely run this case by her/him and follow whatever advice you may get from that source. |
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Re: ADA and termination
posted at 2/20/2013 5:11 PM EST
on Workforce Management
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Posts: 215
First: 9/20/2011 Last: 5/14/2013 |
In Response to Re: ADA and termination: If he has an attorney, you need one. I'd definitely run this case by her/him and follow whatever advice you may get from that source. Were an attorney not already involved, my approach would be to send a registered letter stating that he needs to either provide a physician's clearance to return to work specifying any accomodations required or a physician's certification of inability to return to work. Failure to provide such within 2 weeks would result in a termination of employment. Posted by nork4 I agreed with Nork as to how to handle under either circumstance. |
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Re: ADA and termination
posted at 2/26/2013 10:22 AM EST
on Workforce Management
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Posts: 14
First: 10/13/2011 Last: 5/14/2013 |
Our agency has a similar provision, but less absolute; that is, termination after a year is not automatic. We do, at that point, requested updated medical documentation, including an estimate of when the employee may be returning to work and any accommodations requested. If a return to work date is still indefinite -- even with accommodations -- the employee is sent a proposed separation from employment. |
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Re: ADA and termination
posted at 2/26/2013 12:28 PM EST
on Workforce Management
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Posts: 221
First: 9/29/2011 Last: 5/2/2013 |
Granny: |
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Re: ADA and termination
posted at 3/1/2013 5:05 PM EST
on Workforce Management
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Posts: 5
First: 6/4/2012 Last: 3/1/2013 |
You can choose to be more generous than required by law but you must nevertheless follow the law. Just because you are generous by increasing the FMLA leave of 12 weeks to 52, doesn't allow you to otherwise ignore the other requirements. Listen to your lawyer, that's what he's there for. Rewrite your policy to your lawyer's suggestion and demand medical info from the employee. Try to work with him even if he seems intent on not cooperating. Be sure to do all you can do to follow the law before you consider termination. If you're lucky you'll dodge a legal bullet. |
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