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Employee out of FMLA leave and unable to do the job? It’s time to consider termination

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in FMLA Guidelines,Human Resources

You probably know that when a disabled employee has used up all his FMLA leave entitlement, he may still be entitled to reasonable accommodations under the ADA. It’s legitimate to offer additional leave as a reasonable accommodation.

However, at some point, time off can be a burden for employers, especially when the employee can’t estimate when he will be ready to return. In that case, it may be time to terminate the employee.

Make a good faith effort to work out a solution, but don’t hesitate to end the working relationship when it becomes clear the employee’s condition isn’t likely to improve.

Recent case: Andrew Amsel had worked for the Texas Water Develo­­pment Board for a decade when he was terminated.

Amsel had several health problems stemming from quadruple bypass surgery and a bout with cancer several years before taking his job. He experienced severe and regular chest pain, had trouble breathing and suffered digestive problems associated with the removal of his esophagus and abdominal surgery.

Still, Amsel was able to perform his job with several accommodations, such as working from home when needed.

Then his health took a turn for the worse and he used up his FMLA leave for treatment and recuperation. Plus, his job was on a list to be out­­sourced, causing additional stress. Amsel asked for reassignment to another, presumably more secure job.

The board agreed to reassign him. The new job required Amsel to spend substantial time in the office working as part of a team. His health also continued to slide after he developed bronchitis.

Amsel got more time off, with help from co-workers who donated time from their own sick leave allotments.

However, after five months off and with no end in sight, the board concluded that Amsel wasn’t able to return to work. Even his doctor said Amsel could have a major heart attack at any time. Amsel applied for disability coverage and was terminated.

He sued anyway, alleging failure to accommodate. He in­­sisted, despite the medical evidence, that he could work from home.

The court dismissed his case. It reasoned that the ADA doesn’t re­­quire indefinite leave as a reasonable accommodation. At some point, dis­­abled employees must come to work and do their jobs. Be­­cause Amsel couldn’t work, he wasn’t a qualified person with a disability. Plus, it was clear that the new job couldn’t be done from home, even if Amsel had been medically cleared for such work. (Amsel v. The Texas Water Development Board, et al., No. 11-50255, 5th Cir., 2012)

Final note: What if a disabled employee isn’t eligible for any FMLA or other sick leave because he’s a new employee? Don’t make the mistake of terminating him right away. In many cases, you may still want to offer 12 weeks of unpaid leave. That leave, however, won’t have all the protections the FMLA affords, such as guaranteed reinstatement to the same or an equivalent position. The best approach in such a situation: Ask your attorney to advise you on how to handle the reasonable accommodations process.

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