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You can discharge if there’s no way to tell when employee will return to work

by on
in Employment Law,FMLA Guidelines,Human Resources

Employers don’t have to provide a disabled employee with an indefinite leave of absence when the employee has a medical emergency and doesn’t know how long it will take to return.

As long as the employee isn’t covered by the FMLA (in which case, she is entitled to 12 unpaid weeks of leave), you can terminate the employee without violating the ADA.

Recent case:
Floyce Peyton took a job with a store chain as a manager and went through three weeks of training. Then she started work at her assigned store.

Just two days later, she experienced abdominal pain and had to see her doctor. She was then diagnosed with ovarian cancer and underwent immediate surgery. Her doctor couldn’t tell the company when she would be ready to come back to work because she had a tough course of chemotherapy ahead of her.

The company replaced her. Six months later, Peyton was well enough to come back.

She sued, alleging she should have been granted a leave of absence when she got sick.

But the court disagreed. She wasn’t eligible for FMLA leave because she was a new employee, and she couldn’t determine how long she would be unable to work. That meant she wasn’t qualified to perform her job, the court reasoned. The court said what amounts to an indefinite leave of absence is not a reasonable accommodation. (Peyton v. Fred’s Stores, No. 08-2346, 8th Cir., 2009)

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