6.2 M Lesson for Sears

basinelectric

Upon reading the ND Employment Law Newsletter for June regarding the $6.2 M Lesson for Sears, we have a few questions. If we have an employee who has either been injured or has an illness that has deemed them disabled, they have applied for long term disability and been accepted. Is it lawful to terminate their employment after twelve months if they remain on LTD?

Still Need Coffee

I would say there's probably an ADA issue here...Are there any accommodations the employer could make to help them return to work? In general, if there are no accommodations to be made, and/or the employee cannot perform the essential functions of their job (with or without accommodation), then I don't beleive you are required to keep them employed.

Other things to consider: Is this a work injury or something outside the employment relationship?

ACU Frank

We went through this a few months ago. Lack of return-to-work authorization resulted in termination.

Leslie Oliver ND

Under either circumstance, you should do an analysis under the ADA, as amended. Assume the individual has a disability resulting from an illness or a workplace injury. As an employer, you offer long term disabiilty benefits, voluntarily, and the employee has qualified for LTD benefits.

The question under the ADA is whether you can reasonably accommodate the employee, e.g. is an extended leave of absence reasonable? The answer to this has to be determined on a case by case basis looking at the company's needs and resources and the employee's abilities.

Any decision to terminate an employee just because he or she has been out on long term disability leave for longer than 12 months runs afoul of the ADA. That said, employers have the right to limit the amount of leave an employee may exercise. When that period of time expires, however, employers have an obligation to consider whether reasonable accommodations exist that would permit the employee to return to work.