Please purchase a SHRM membership before saving bookmarks. OK Join. An error has occurred. From Email. To Email. Send Cancel Close. Post a Job See All Jobs. Family and Medical Leave Act. HR Daily Newsletter News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day. When deciding to layoff employees, employers need to make sure that their decisions are based on business needs, rather than on a desire to get rid of employees with disabilities.
Although the ADA protects individuals with disabilities against discrimination on the basis of disability, employees with disabilities are not protected against non-discriminatory layoffs. For example, employers can base their layoff decisions on such non-discriminatory criteria as productivity, seniority, or job category.
However, if an employer bases its layoff decisions on productivity of employees, it cannot penalize employees for accommodations that were provided under the ADA. Company X is having a reduction-in-force. For instance, the California Family Rights Act requires your employer to continue all group benefits while you are out on leave.
Check with your state's Department of Labor or an employment law attorney for information on your state's leave policies, especially if you aren't covered by the FMLA. Even after you have exhausted your 12 weeks of FMLA leave per year, the Americans with Disabilities Act ADA can make it difficult for your employer to fire you when you are out on disability leave. Before firing you while you're on disability leave—or not reinstating you to your position after your disability leave ends—your employer has to try to "accommodate" you; that is, make the job suitable for you, given your impairments.
Examples of ways an employer could accommodate your disability include granting you more unpaid leave after you've exhausted your FMLA leave, allowing you to work a flexible schedule, or making your workspace more ergonomic.
Your employer must work interactively with you to try to come up with accommodations that would allow you to do your job. To protect yourself, it's best to request accomodations from your employer in writing. During discussions with your employer, you may need to compromise on the accommodations you asked for, however, since your employer only has to make accommodations that are reasonable and that won't cause the company "undue hardship.
If you and your employer can't figure out any accommodations that are reasonable and that allow you to do the "essential functions" of your job, your employer can fire you. In other words, despite the best efforts of your employer to accommodate you, if you still can't do the job, you can be fired.
Or if your employer has set up accommodations that allow you to return to work, but you don't return, you can be fired. If you do exceed 12 weeks of FMLA, even by a day, you run the risk of being terminated for excessive absences. Of course, if you're fired while receiving disability insurance benefits, you'll still continue to receive benefits according to the terms of your policy.
Finally, remember that FMLA is a federal law, and that some states will have more generous policies regarding unpaid medical leave. Check with your state's Department of Labor or an employment law attorney to find out the rules where you live. Although most employees in the United States work on an "at-will" basis, which means they can be terminated for virtually any reason, the Americans with Disabilities Act ADA makes it illegal to fire an employee due to disability.
This law protects those who meet the ADA's definition of disability, which includes many individuals on disability leave and some who have previously received benefits and returned to work. Under the ADA, disability is defined as "a physical or mental impairment that substantially limits a major life activity. Accommodations can include restructuring a person's job duties or schedule, installing Braille signage, modifying desks, making the workplace more wheelchair accessible, and many others.
Even granting additional unpaid leave can be a reasonable accommodation. Whether any of these accommodations constitute a hardship for the employer depends on many factors, including the size of the company and the cost of the changes. If there aren't any reasonable accommodations an employer can make that will allow a disabled employee to perform all the essential functions of the position, the worker may be legally terminated.
Before terminating an employee on leave — or not allowing a worker to return to work after his or her leave — an employer has to determine whether there are accommodations that would allow the employee to do the job. The employer must work with the employee to try several types of accommodations specific to his or her disability before deciding that the worker can't do the essential functions of the job.
But remember, you may need to negotiate with your employer over the accommodations you'll need to keep your job, especially if the accommodations will be expensive for your employer or you work for a small company.
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