ADA in NY State
TABHR
18 Posts
I have a previous employee (in 2007) who has a hernia and had it while he worked for me at as a driver at my plumbing suppy company. He had the hernia for the last 6-8 months of employment and was on light duty during that time. He requested 3 weeks off to get the hernia surgery but returned to work having spent the 3 weeks in FL and having not gotten the surgery. In May of 2008, with the downturn in the economy, I needed to lay off a driver. I laid him off. He collected unemployment. I called three times trying to get him to work for us again and he refused the opportunity to work for us. I called the unemployment they cancelled his benefits due to his unwillingness to work. He applied for disability at that time and was given the offer by the insurance company to pay for the operation but has chosen not to have the surgery to date.
He has now sued me for discrimination under ADA saying I discriminated against him because of the hernia.
I have the following questions:
Does the ADA prevent me from terminating someone for having a hernia whether or not that was my reason?
What is expected of an employer with 11 employees who has an employee that can not perform his job and his job is delivery where only one person is there.
Comments
The cause of the termination is itself the determining factor as to whether there may be any cause of action against you regarding the termination (whether under ADA or any other statute or principle enforced by the courts). Ask these questions instead. First, "Could a third party examining the record of this termination decision reasonably conclude that the cause of termination was the former employee's hernia?" Second, "does the law provide a remedy for people fired for having a hernia?"
You should see an attorney and examine both questions.
[quote user="TABHR"] What is expected of an employer with 11 employees who has an employee that can not perform his job and his job is delivery where only one person is there.[/quote]
ADA only requires that you make reasonable accomodation. Perhaps there was no reasonable accomodation you could make. Smaller companies are generally less able to make some kinds of accomodations than big companies. However, that's an attorney question that should have been engaged earlier rather than later.
The general rule, particularly if you do not have HR employee relations expertise on staff or available to you on a consulting basis, is that you will pay an employment law attorney sooner or later. The sooner you pay, the less it will cost you.