If you can justify a decision to terminate an employee — even one with a disability or who is on— don’t wait. Just do it. Delaying the decision for fear of appearing insensitive may actually create the appearance that your motives aren’t above reproach.
It isn’t illegal to fire someone who has a disability or is onleave if you can show you’d have done so anyway.
Recent case: Thomas Fox worked as an investment advisor until he took disability leave to treat colon cancer. He returned to work part-time without back-to-work clearance from his physician.
While waiting for the OK from his doctor, Fox worked with a client on a pension annuity exchange. The client then learned that the transaction would cause tax liabilities, and spoke with Fox’s supervisors.
Company rules required complete disclosure of tax consequences, and Fox had received an earlier warning that he could not propose such transactions without higher-level knowledge and approval. When his supervisors learned Fox had recommended the exchange anyway, the company decided to review his employment.
A team of supervisors and managers met and discussed the problem. They decided to discharge Fox, and immediately informed him. It was the same day his return-to-work certificate arrived.
Fox sued, alleging he was fired because of his disability. He noted he was fired the day he was cleared to return. But the court dismissed the case, concluding the two events weren’t related. It cited company records showing when and how it made the decision. There was no evidence Fox’s disability played any role. (Fox v. Ryan Beck & Company, No. 04-1887, WD PA, 2007)