Layoff of Employee Returning from Short Term Disability

Missy

We had a reduction in force in May. An employee that was on our list due to a job elimination, had a severe seizure in March (at work). During the seizure, he dislocated his shoulder, which resulted in him requiring surgery once his seizures were under control. He was taken to the hospital and has been on STD since.

He wants to come back to work and sent us a doctor's release. His limitations are lifting and reaching (not an issue, as he had a desk job). We still don't have a position for him and don't have any vacancies that he is qualified for.

I'm looking for advice on how to handle this one. On a personal level, I feel badly about terminating someone who has bee so gravely ill and to thicken the plot, his wife is a judge in our county and I want to tread very carefully from a legal standpoint.

Gar

It seems to me that if the employee would have been subject to lay-off had he not gone out sick, you have no choice but to do so once he returns to duty. Failure to do so would make your lay-off process subject to question.

Theresa Gegen TX

You can lay off an employee who is out because of a medical condition. However, you need to make sure that you have your evidence in order. Specifically, you need to make sure that your decision to lay off this employee (rather than someone else) was defensible, and that you have followed company policy.

As far as whether the employee can do an alternate position, make sure you consider whether he needs an accomodation under the ADA.

My advice is that you review the facts with an employment law attorney, who can let you know if your position is defensible.

Good Luck!

Theresa Gegen
Attorney Editor -- Texas