Firing someone because you believe he has a disability violates the ADA under some circumstances, but not all. If the disabling condition is transitory and minor, you can terminate without violating the ADA.
Recent case: Francisco worked for a quarry for 14 years and was a good employee. When he learned his sister in Mexico was very ill and would soon die, he immediately traveled to see her and asked his adult son to call his employer.
Francisco was gone for a week; his sister had died and he stayed to attend her funeral. When he got home, he immediately called the quarry, but was told he had been terminated for two reasons. First, he hadn’t personally called in, as company rules required. Plus, the company was worried Francisco’s trip to Mexico might have exposed him to the swine flu. HR told him that under no circumstances was he to show up at the workplace.
Francisco sued, alleging that, under the ADA, the employer had regarded him as disabled by the swine flu.
But the quarry said that, while it had fired him in part because of fear, swine flu had turned out to be no more dangerous than the regular seasonal flu. Therefore, it argued, it didn’t regard Francisco as disabled, but only as someone with a transitory and minor illness.
The court agreed that Francisco wasn’t protected by the ADA even if he was fired because the company believed at the time he was disabled and dangerous. What counted was that the swine flu turned out to be minor and not a true disability. (Valdez v. Minnesota Quarries, No. 12-CV-0801, DC MN, 2012)
Advice: Consult your attorney any time you seek to fire an employee who has had health issues. This complex area of the law requires expert assistance.
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- Law 101: Anti-Harassment training for managers, supervisors
- Promises, promises: Well-intentioned words may send fired employee in search of an attorney
- Be prepared to defend retaliation lawsuit if fired worker had ever complained to HR
- Hang tough when there's absolutely no discrimination