When can we terminate during medical leave? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

When can we terminate during medical leave?

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in FMLA Guidelines,Human Resources

Q. We have an employee who has been on workers’ comp for nine months. He’s not planning to have his fractured ankle operated on. HR wants to terminate him on the grounds that (after the operation) he will have been on FMLA for over a year. We realize the employee would still be carried by our insurer. Can we legally terminate an employee on workers’ comp after a year’s medical leave? — Vincent, Louisiana

A. The FMLA offers employees job-protected leave to care for their own serious health conditions for up to 12 weeks in a 12-month period. If the employee is not able to return to work after 12 weeks, his position is no longer protected and the employer may fill that job, as far as the FMLA is concerned. However, some state laws provide job protections (including reinstatement) to individuals on workers’ compensation leave.

Assuming this doesn’t apply in your case, don’t forget the ADA. It sounds as though the employee’s injury is significant enough that it could be considered a disability. As a result, a leave of absence of more than 12 weeks may be a “reasonable accommodation” for such a disability, if the additional leave seems reasonably likely to help the employee recover enough to return. Whether the employee is entitled to an extended leave of absence under the ADA must be determined on a case-by-case basis—taking into consideration your staffing needs and the individual’s limitations—and not by reference to the length of time that the individual has been absent.

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