If you can't terminate the employee, work with them to both your benefits

by on May 27, 2009 · 0 Comment POSTED IN: HR Info Center

FMLA regulations and employee terminations

In the case of intermittent FMLA leave ,if the employee is not able to perform all the volume of work because of the FMLA disability, separating the FMLA disability and the performance issue for which you can terminate the employee can be really challenging.

With respect to the FMLA component, there are situations lots of times where people say, “This employee has told us they’re on medication. It’s either making them drowsy or this or that.”

It’s very challenging and it may be a situation where they’re covered by the Americans with Disabilities Act because they do have a disability and as a result employers have an obligation to reasonably accommodate and not just terminate an employee.

So you want to work with that person and maybe get information from that person’s doctor about what to do to make sure they can perform the essential functions of their job with or without a reasonable accommodation. So with the medication, it may mean changing that person’s work schedule, giving them different break times.

Reasonable Accommodation
If it’s really bad and you find that they just can’t do the job, then you may want to talk about how they can solve the problem of still working while adjusting to their medical needs. Maybe the answer is they need more time off while they’re adjusting to their medication, et cetera. There’s no easy answer because it’s very case-by-case, and you can’t simply terminate the employee without them having a strong case for a wrongful termination and disability discrimination lawsuit. And when you get into the realm of health issues, it can potentially become very tricky.

Intermittent FMLA leave
Intermittent FMLA leave is another tricky one. It’s protected if the person really is out for what qualifies as a legitimate health condition under the FMLA or a serious health condition of a family member. So in those instances deciding to terminate an employee is either risky or flat-out forbidden

Edited remarks from the Rapid Learning Institute webinar “Effective Termination Techniques -How to Document Terminations So You Won’t Lose a Lawsuit” by Alyssa Senzel October 24, 2007

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