We have an employee who has been out on disability for almost a year, but we can’t let him go because he’s on disability. What are our options?
A commonly held misconception is that an employer can’t lay off an employee because they are on disability.
For absolute job protection, the employee needs to be on a protected leave, such as pregnancy disability leave, and the federal and state family leaves, such as the Family Medical Leave Act and the California Family Rights Act.
When the employee isn’t subject to those leaves, granting extra time off is something the employer needs to consider. An employer should not have a knee-jerk reaction to terminate employment when the employee needs extra time due to a disability.
Federal/State Guidelines
When the extended time becomes lengthy, or the employee didn’t qualify for leave to begin with, it begins to get “tricky.” Both the Equal Employment Opportunity Commission (EEOC) and the state Department of Fair Employment and Housing (DFEH) have issued guidelines asking employers to make concessions to employees who are disabled, to allow additional time off.
This is commonly called an ADA (Americans with Disabilities Act) accommodation. It requires both the employer and the employee to enter into the “interactive process,” with both sides working to provide options and give input.
The employer may not deny or reject an accommodation unless it creates a “business hardship,” and establishing the business hardship often is difficult for the employer.
Seeking Legal Counsel
Nevertheless, there often comes a point where there are no options, and the employer is not obligated to hold a job open indefinitely because the employee is disabled, no matter how genuine the disability may be. This is true even where the employee is receiving benefits through either state disability insurance or workers’ compensation coverage.
In these circumstances, particularly for a longtime employee, it’s advisable to seek legal counsel before taking action.
Dana Leisinger, HR adviser, CalChamber
For more information, CalChamber Preferred and Executive members can submit a question to CalChamber’s Labor Law Helpline. CalChamber members can read more about the different Leaves of Absence in the HR Library. Not a member? See what CalChamber can do for you.
