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Posted by on Jun 11, 2015 in Uncategorized |

Can You Sack Somebody On Disability Leave?

According to the Social Security Administration, the number of applications for disabled worker benefits in the United States exceeded 2.5 million in 2014. As well as the financial cost to the U.S. Government, these claims cost American employers billions of dollars in lost working hours. American law protects disabled workers who cannot work, but this legislation does not mean you cannot take action in certain circumstances. Find out why.

Applicable legislation

In the United States, two federal laws protect employees on disability leave.

The Americans with Disabilities Act (ADA) aims to protect disabled people throughout their working and personal lives. The Act offers comprehensive protection in many areas, including the workplace. Under Title I, American employers cannot discriminate against their disabled employees from recruitment right through to termination.

According to the ADA, you do not have to offer disability or medical-related leave, but you do have to make reasonable accommodations to help any disabled workers. In some cases, a court may rule that leave from work is a reasonable accommodation you have to make.

The Family and Medical Leave Act (FMLA) applies to all employees. Under the Act, employees can (in certain circumstances) take up to 12 weeks unpaid leave each year. Applicable circumstances include disability, illness, injury recovery or taking care of a family member with a disability.

Other legislation (like Workers’ Compensation laws) may also apply to workers on disability leave. In fact, multiple laws can simultaneously protect workers on disability leave, so you need to think carefully about any action you take.

Disciplinary action against employees on disability leave

According to these laws, you cannot take action against an employee because he or she is on disability leave, but you CAN take action for other reasons WHILE the worker is on leave. For example, if an employee has a problem with late attendance or other performance issue, employers can take action if he or she then takes disability or medical leave.

Anti-discrimination laws protect employees from unfair treatment, but the law also recognizes that employers must operate efficiently and profitably. As such, if it is not unreasonable for an employee to attend work on time, you can take disciplinary action, even if he or she needs to take disability leave. 

Some employees mistakenly believe that medical leave can protect them from any type of action from an employer, but this isn’t true. Indeed, if necessary, you can still sack somebody on disability leave, provided your reason for termination has nothing to do with the person’s disability.

Disciplinary action related to an employee’s disability leave

While you cannot take action against somebody because they are on disability leave, you can still tackle an employee who doesn’t follow an agreed company process. For example, the FMLA gives all employees up to 12 weeks unpaid leave each year, but if somebody does not return to work immediately after this (or exceeds this amount in one year), you can take action, even if the employee used the leave because of his or her disability. Similarly, you can ask employees to report their absence in a certain way. If the worker then fails to notify you, you can take disciplinary action.

In extreme cases, this could mean that you sack somebody on disability leave. If you exhaust every attempt to speak to the employee, and he or she does not contact you for several weeks, you could terminate the employment contract. In this case, the reason for termination is misconduct for breach of contract.

Advice for employers

In all cases, a judge would expect you to prove that you have closely followed your internal processes. You must also prove that you have treated the employee consistently and fairly, and he or she has had enough opportunities to correct a problem.

As such, during any disciplinary case, employers should:

  • Document every discussion and share a copy with the worker
  • Give the employee an opportunity to ask questions at every stage
  • Continually check whether the employee understands what you have said
  • Refer back to company policy at regular intervals

Ideally, employers should work hard to resolve the situation with the employee. In complex cases, it’s a good idea to talk to a corporate lawyer for more advice.

American businesses lose millions of working days every year to disability leave. While legislation makes sure employers treat disabled workers fairly, it’s important to note that you can still sack somebody on disability leave if the situation warrants this action.