Q. One of our employees has been out on disability leave for almost 16 months. He says he wants to return to work, but only if we give him a supervisory position without a lot of strenuous activity. We have no such position available. We’ve offered him other positions, but he’s refused them all. Can we legally terminate him?
A. This is a very individualized determination that depends on a number of facts:
- Was the employee a supervisor before he went on leave?
- Does he have a disability that is protected under the ADA?
- Why did he refuse the offered positions?
If the employee has a disability, you are required to provide a reasonable accommodation if he needs one to work for you. You need to get more information about the nature of his restrictions and whether they are caused by a disability. Then, you should talk to the employee to determine if there is a way to accommodate his restrictions. It may be that an existing job could be modified to be less strenuous, for example.
You aren’t required to offer him the accommodation he wants, if others are available. You should consult with counsel to determine whether the other positions you have offered met your reasonable accommodation obligation.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Are you 'overcomplying'? 7 laws you might be able to ignore
- New N.Y. 'wage theft' law imposes stiff penalties on employers
- Don't set automatic deadline for workers returning from disability leave.
- Arbitration agreement leads to ... arbitration!