What should you do if you learn that an employee who is out on
If you are absolutely sure that she can’t claim she is disabled under the ADA—and equally sure that she won’t be able to return to her position because she’s not ready to perform the essential functions of that job at the end of her leave—you can terminate her.
Do this only if you have strong evidence—preferably from the employee’s medical provider—that she can’t return after 12 weeks.
There’s a proviso, however: You still must continue providing any benefits she was receiving while on leave, such as medical insurance premium payments. What she isn’t entitled to is reinstatement to her former position or an equivalent one.
Recent case: Laura Roberts worked for The Health Association and was out on unpaid FMLA leave for her own serious health condition. The employer provided her with continuation health benefits while she was on leave.
Then her doctors sent the company a certification that said Roberts definitely would not be able to return to work at the end of her leave. The employer then terminated her before the 12 weeks expired. It continued to pay her benefits for the duration of the 12-week period.
Roberts sued, alleging disability discrimination and interference with her right to FMLA leave.
The 2nd Circuit Court of Appeals tossed out the case. It reasoned that, technically, terminating her before her 12 weeks were over interfered with her leave, since she was entitled to 12 unpaid weeks.
But because the company also paid her benefits for the entire 12-week period, Roberts had lost nothing she was entitled to. Her own doctors said she wasn’t fit to return, so the employer hadn’t interfered with her right to reinstatement. That right ends if the employee isn’t medically ready to return at the beginning of week 13.
The court also said there was no evidence Roberts was disabled. Her own doctors said she would be ready to return to work a few weeks later. Temporary conditions usually aren’t ADA disabilities. (Roberts v. The Health Association, No. 07-3553, 2nd Cir., 2009)
Advice: Continue to provide health benefits for employees out on FMLA leave. You must offer them the same services your group plan provided on-the-job employees. If you change coverage or adopt another plan that offers new services while employees are on leave, you must make the new benefits available to them as well.
Make it clear to employees taking unpaid leave what portion of their they must pay. Often, workers don’t realize how much is deducted from their paychecks to cover health insurance. Let them know that they must still pay this amount even if they’re not receiving a paycheck. Don’t pay their premiums for them.
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