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Beware ADA lawsuit if you fire after FMLA leave expires

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in Employment Law,FMLA Guidelines,Human Resources

Don’t make a common, but potentially expensive mistake. You can terminate an employee who isn’t ready to return to work when he has used up his FMLA leave without violating the FMLA. However, you may be violating the ADA by doing so.

Before making a final decision, figure out whether the employee is disabled. If that’s the case, firing him may amount to both discrimination on the basis of disability and failure to accommodate.

Recent case: When Paul Wamack became depressed, he underwent inpatient treatment. He used up his FMLA leave before he was released. His employer terminated him.

Wamack sued, alleging disability discrimination and failure to accommodate. The court said the case could go to trial. (Wamack v. Windsor Park, et al., No. 10-CV-6808, ND IL, 2011)

Note: Offering additional time off is a legitimate ADA accommodation.

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