Layoff and ADA

slewis

My warehouse manager was asked to make a decision of 2 people for a layoff. He choose 2 employees he was having performance issues with. Today one of the employees that was picked (he does not know yet) came to another manager with a time off request to get some cancerous polyps removed. Does this mean I can't lay him off now? Any help would be appreciated.

Hatchetman

ADA doesn't prohibit an employer from laying off a disabled employee if the employee would be laid off any ways (also, I don't believe that any state law would exclude an employee with a medical condition from being laid off merely because of the medical condition). In a situation where you have two "equal" employees with one of them being "disabled", your lay-off criteria needs to be reasonable and not based on any protected status or result in illegal discrimination. Thus if you're using senioirity, for example, as a criterion for determining who gets laid off, and a disabled employee is the least senior, then that employee would be laid off.

I'm not saying however that this employee, merely from your description of the medical condition, would be considered disabled under ADA or similar state law. However, be prepared to explain how you concluded one employee or another wound up being laid off. Even if the employee isn't disabled, he may claim that he was laid off because of his request for leave for a medical procedure or that the procedure would cost be charged against the employer's health insurance.

slewis

Thank you for your insight.

System

It would help if you have documentation to show that you chose this employee for layoff before you knew about his condition.

James Sokolowski
Senior Editor
M. Lee Smith Publishers