You can discharge disabled employee if there’s no way to know when she’ll return

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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 to work.

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

Recent case:
Just two days into her job as a store manager, Floyce Peyton experienced abdominal pain and went to her doctor. She was diagnosed with ovarian cancer and underwent immediate surgery.

Her doctor couldn’t tell the company when she would be able to come back to work because she had a tough course of chemotherapy ahead of her. So the company terminated her and hired someone else.

Peyton filed an ADA lawsuit, alleging she should have been granted leave as an accommodation. But the court disagreed. The court said Peyton wasn’t eligible for ADA protection because she couldn’t show she could perform the essential functions of the job, either with or without accommodation.

The court said, “A request for an indefinite leave of absence … is not a reasonable accommodation under the ADA.”

Plus, she wasn’t eligible for FMLA leave because she hadn’t worked enough hours. (Peyton v. Fred’s Stores, No. 08-2346, 8th Cir., 2009)

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