And the “Winner” Is… Terminating Ill Employees Too Quickly

To my knowledge there is no award for this, but I hereby nominate the rush to terminate an employees for absences for health reasons as the most avoidable action that employers take that gets them into legal hot water. Or, if you prefer, consider this a year-end list … of one.

Bill Nolan

I am not saying that employers intend to discriminate or otherwise deprive the employees in question of their legal rights. To the contrary, I believe that most employers want and intend to comply with their legal obligations. Of course there are exceptions, but I think they are not the norm. But sometimes employers take actions that make it much more difficult for them to prove the lawful and appropriate basis for their decisions. Employee health issues may be the area where this happens most.

You small employers who say, “Oh, this won’t apply to me” – stop right there. What I broadly refer to as “employee health issues” includes a host of potential legal issues, the most common of which are the federal Family and Medical Leave Act (FMLA) and the disability discrimination statutes. Indeed, the FMLA does not apply unless you have at least 50 employees and, depending on how they are geographically distributed, maybe not even then.

And the federal Americans with Disabilities Act’s employment provisions apply only to employers with 15 or more employees. But, the Ohio discrimination statute applies to employers with as few as four employees, and under an Ohio Supreme Court decision, in effect, can apply to the discharge of an employee of any size. So, no matter how large or small your company is – keep reading.

I have read a lot of court decisions about employees who allege they were terminated because of a disability and/or because they were exercising their rights to take FMLA leave. It is a good example of an area of the law that lawyers like to call “fact specific.” In other words, there are not a lot of bright lines setting forth when the employer may permissibly terminate an employee who may have a disability and/or is taking FMLA leave. You really have to look at the details of each particular case to assess the likely decision. Even then, different courts may make different decisions about similar circumstances.

However, one thing I can tell you from this body of cases is that, if you could somehow graph the results of the cases, you would find that the employer’s success rate increases the more “steps” the employer took to try to work through the employee’s issues. The employer who gave the employee one more chance to provide the requested medical documentation or one more brief leave to try to come around to full health will succeed much more often than the employer who takes the first available opportunity to get rid of the employee.

In other words, employers do not often win these cases because of the employee’s failure to return to work the day after the employee’s available leave expired, or because the returned requested from his/her doctor a couple days late. Employers win cases when they can show that they gave the employee reasonable opportunities to succeed. Not what seems reasonable to the employer who has been dealing with the situation, unfortunately, but reasonable to the judge or jury or other decision-maker who has to assess the matter based on a very condensed set of information in a very condensed time frame.

I know what employer’s questions are from here.

Can’t we ever get rid of an employee who won’t come to work? Absolutely. The courts have, for the most part, been clear that indefinite leave for an employee is not required, and I certainly do not recommend that employees provide that. A rule of thumb to consider along with your own lawyer is this: Go one more step than you feel like you should have to. This often will move you far enough along on that hypothetical graph that I mentioned.

I think the employee is ready to come back to work and just does not want to. I do not need any convincing that this happens. While I think there are fewer employees out there willing to be on unpaid leave than employers may think, I have certainly seen plenty of employees I think are malingerers. The challenge is, when you go to tell your story to that third party decision-maker, they do not know you or the employee. To persuade that audience, your file needs to be particularly compelling.

Other employees are frustrated that they have to pick up this employee’s load. I am sympathetic to this, but the short answer is that none of us have much choice in this matter. It is a balancing act to manage these other employees while still maintaining the requisite privacy for the employee on leave, but experienced employment counsel can help you craft this message. If managers have built up some reservoir of trust with other employees, this is manageable.

In short, there are few things in the area of employment law that I feel more certain about than this: by taking one more step, employers greatly decrease their legal risk with employees who ultimately are terminated for not coming to work. If you feel it is time to terminate such an employee, make the small investment in a few minutes of your regular counsel’s time to avoid having to purchase much more of it later.