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Disabled worker can’t perform? OK to terminate

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Sometimes, it’s obvious that a disabled employee isn’t going to be able to perform her job, with or without accommodations. That realization may happen early, or after many attempts at accommodation.

As long as you have documented your efforts to help, rest assured a court probably won’t fault you for terminating the employee.

Recent case: Branell was a nurse at a large hospital center. After about a year on the job, Branell twice tried to commit suicide. The first time, she took an overdose of a sleep medication. The second time, she injected herself with a concoction of her own prescription drugs and narcotics that were apparently diverted from patients.

As a result of her suicide attempts, Branell’s nursing license was re­­stricted and she had to undergo a treatment program. She took FMLA leave and additional time off for treatment and recovery. Over the next few years, she took additional time off for more treatment.

Then her performance began to cause concerns. For example, Branell made four patient medication errors within a six-month period—far more mistakes than other nurses made. She failed to show up for work or call in after falling and hitting her head, resulting in a three-day suspension.

On the day she returned, she appeared disoriented and confused. She admitted she couldn’t care for patients and agreed to a drug test. That came back negative for everything except prescribed medications. The hospital fired her.

Branell sued, alleging she had been fired when she should have been accommodated with treatment or more time off.

The court disagreed. It concluded that the hospital had accommodated Branell in the past, but that this time it was clear accommodation wasn’t going to work. It dismissed her case. (Harris v. Reston Hospital, No. 12-1544, 4th Cir., 2013)

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