Think twice before firing employee who needs to take short disability leave

Too many employers assume they can simply discharge a worker who isn’t yet eligible for FMLA leave, doesn’t have any other leave available and can’t work for a short period of time. That’s simply not always true.

If the employee qualifies as disabled under the ADA, he may be entitled to a short leave as a reasonable accommodation. You risk a lawsuit if you summarily terminate the employee and it turns out he is both disabled and would have been able to return to work following the requested leave.

Recent case: When Lamont was a young man, he injured one of his eyes and became partially blind. After recovering, he was able to work normally.

Lamont took a job with Dollar General, working the night shift in shipping and loading. Everyone agreed that he was an exemplary employee who worked hard despite his disability. He earned kudos for his initiative and tenacity.

But about five months after being hired, Lamont developed serious problems with his remaining good eye. Dollar General granted about eight weeks of leave for eyesight-saving treatments. Unfortunately, on his scheduled day back, his vision was still blurry. His doctors recommended an additional two days off, and Lamont told his supervisors.

Instead of accommodating the request, the company terminated Lamont. He sued, alleging disability discrimination.

In the meantime, he had to file for bankruptcy and underwent further medical treatment. Almost immediately, however, he begin looking for a new job despite his problems.

Dollar General first argued that Lamont couldn’t sue because he was in bankruptcy and that if he couldn’t get the bankruptcy trustee to sue for him, he was out of luck. The court rejected that position and said Lamont could still sue.

The court then clarified how additional leave as an accommodation is handled. It said that if an employer terminates an employee after receiving a medical certification that has an estimated return date, it risks an ADA lawsuit.

Lamont, however, had to prove that the two days off was reasonable and that when his requested leave ended, he would have been able to work. Unfortunately for him, that wasn’t true. On the estimated return date, he was still unable to work because of his eye problems. His case was dismissed. (Wilson v. Dollar General, No. 12-1573, 4th Cir., 2013)

Final note: Neither employers nor doctors nor employees have crystal balls that look into the future. That’s why it’s so difficult to decide whether to allow additional leave beyond accumulated or earned leave.

If the employer bets wrong and the employee really could have returned to work after the requested leave, it has opened itself up to liability. On the other hand, if the employee couldn’t return, there is no violation. But you won’t know when you make the decision.

Advice: The best approach is to approve relatively short leave requests that include a return date. Then terminate the employee if he’s not ready to return by that date. Always consult your attorney before making a final decision. Document every step, every conversation and every interaction for the record.