Employers in today’s more diverse and inclusive society must provide an atmosphere where all employees may reach their full potential. Companies are beginning to see the value of welcoming and assisting employees who happen to have disabilities, and they often hire them. Most companies report that 4 to 7 percent of their workforce is people with disabilities, on average.
However, there may be times when termination is essential. A firm grasp of legal responsibilities is necessary for that purpose, but so is an abundance of empathy and compassion.
The article serves as a complete reference, providing insights into the complexities of terminating an employee with a disability while adhering to legal rules and encouraging workplace justice.
So, let’s begin understanding what a disability is as per the work environment.
What Qualifies as a Disability?
It is essential to define what constitutes a disability before beginning the termination procedure.
Disabilities might range from physical or mental impairments, and the Americans with Disabilities Act (ADA) incorporates a wide variety of impairments that substantially impede one or more major life activities in its definition of disability.
Under the ADA, a person is considered disabled in the workplace if they:
- A physical or mental impairment substantially limits one or more major life activities.
- Documentation of such impairment (or being considered as having such an impairment) must be supported by medical evidence.
- They are considered to have such an impairment, whether it limits their main activities of daily living or not.
The Americans with Disabilities Act (ADA) does not protect people with every physical or mental impairment. Some things to ask while trying to figure out if a health issue qualifies as a disability under the ADA are mentioned in the dedicated article here.
Which Employers Come Under the ADA?
The ADA covers any business that operates beyond state lines. The “size” restrictions apply to companies with 15 or more employees for at least 20 weeks in the calendar year (either the current or previous year). Companies with fewer than 15 workers are not required to comply with the rule.
The Equal Employment Opportunity Commission (EEOC) is in charge of enforcing these provisions. Employment practices such as hiring, firing, promotions, harassment, training, salaries, and benefits are all subject to the law.
Organizations can avoid legal trouble and foster a positive work environment by familiarizing themselves with and complying with these regulations.
Providing Reasonable Accommodations And Essential Functions
An employee is considered “qualified” if they possess the necessary knowledge, abilities, and credentials for the position and the ability to carry out its key responsibilities with or without reasonable accommodation.
The Americans with Disabilities Act (ADA) mandates that employers with 15 or more employees provide “reasonable accommodations” for employees with disabilities unless doing so would result in “undue hardship” (action requiring significant difficulty or expense to the employer).
However, such an employee must tell management of the handicap for such accommodations to be made. It is a violation of their rights by the employer not to make these modifications.
That is why, it is essential to involve the employee in a collaborative, interactive process when deciding on reasonable accommodations. It calls for candid conversation to determine the worker’s requirements and constraints and to co-create workable answers.
Reasonable Accommodation Types
The Americans with Disabilities Act provides examples of reasonable accommodations for qualified employees, including
- Making the workplace readily accessible and usable by individuals with disabilities, such as wheelchair ramps
- Restructuring job duties
- Offering part-time or modified work schedules
- Transferring an employee to an open position
- Purchasing equipment or modifying existing equipment
- Providing readers or interpreters.
Remember, such accommodations are only necessary if the employee requests them. As long as the employee requires them, companies must comply with the ADA’s reasonable accommodation requirements for disabled workers.
Also, these accommodations mean something other than creating new jobs or decreasing the standard of employment at the workplace. If two equally compelling and reasonable accommodations exist, but one is more expensive or onerous to implement, the employer may select the less costly or burdensome accommodation.
However, if making the requested accommodation will result in undue hardship on the employer’s part (i.e., considerable difficulty or financial resources), the employer is not obligated to change and accommodate disabled employees.
You may learn more about ADA reasonable accommodations by reading our in-depth article on the subject. It offers detailed explanations and suggestions on the topic.
Employees with disabilities are expected to perform their duties like their non-disabled coworkers.
The Essential Functions of the Job
Essential job functions are necessary for the position to perform effectively and efficiently. These are the most essential things a worker has to be able to do to do their job well and have a positive impact on the company.
If an employer has a standard, consistently enforced absenteeism policy, attendance is typically regarded as an essential job requirement.
In an inclusive and supportive workplace, these responsibilities are performed with reasonable accommodations and an awareness of the specific needs of each disabled employee.
Considering Alternatives
Management and employers should think about whether a disabled worker is capable of performing in another role at the organization before terminating their employment. Although not required, it may be excellent for business.
However, it is essential to ensure that giving an employee a second chance keeps the company’s policies and values in the past. Also, the disabled employee’s second opportunity cannot be interpreted as preferential treatment.
What Can Be The Reasons for the Termination Of a Disabled Employee?
The following are some situations in which it might be appropriate to terminate a disabled employee per the disabilities act.
Performance Issues
All employees are expected to meet job performance standards, regardless of disability.
However, an employee with a handicap may be terminated if they continue to perform poorly in their essential job duties after being provided with reasonable accommodations. Also, in the event of termination, it would be for reasons linked to work performance and not because of the employee’s impairment.
Failure to Participate in the Interactive Process
Employers are required by the Americans with Disabilities Act (ADA) to interact with employees who request reasonable accommodations for their disabilities.
Termination may become needed if an employee refuses to participate in the process or rejects any reasonable accommodation that would allow them to do their job.
Breach Of Essential Functions
Even with suitable adjustments as a reasonable accommodation, a disabled worker may be unable to perform the essential functions or job duties. Termination may be considered if the position’s basic responsibilities cannot be met.
Violations of Company’s Policies
Repeatedly breaking company guidelines about workplace behavior, safety, or ethics may be grounds for termination, including for employees with disabilities. Offenses can vary from minor breaches of conduct standards to major ones like harassment or workplace violence.
Exhaustion of Leave and Accommodation Options
The employer must make fair arrangements for qualified disabled employees, such as providing disability leaves and reasonable accommodations.
However, terminating may be considered if the employee has used their leave time and accommodations and has yet to return to work successfully.
Safety Concerns Or Misconduct
Employers may need to consider terminating if an employee’s impairment creates a serious safety risk or direct threat to themselves or other employees.
The Disability Act also states that in cases where identical behavior by non-disabled employees has resulted in the same response from the employer, the ADA permits the termination of the disabled employee.
Similarly, if a disabled employee participates in fraudulent activities, unethical behavior, or workplace misbehavior that violates corporate policy.
End of Contract or Seasonal Work
If the disabled employee is on a fixed-term contract or is performing seasonal work, their employment may terminate when the contract or season expires.
Unavailability Of Worker
An employee’s impairment may lead to termination if they are frequently absent from work and unable to carry out their responsibilities.
https://youtu.be/zxHr7Ox8Pt8?si=htSfB2F7rnPaMAyN
A small video showing what can be why employers terminate a worker with a disability.
Rules For Disability Leave And Termination
It becomes essential for any company contemplating termination to be aware of the rights and safeguards offered to employees with long-term health concerns.
Americans with Disabilities Act (ADA)
The Americans with Disabilities Act outlaws workplace discrimination based on a person’s disability. An employer should participate in an interactive process with a worker on disability leave to evaluate if the worker may return to work with the help of reasonable accommodations.
Termination and the Family Medical Leave Act (FMLA)
Employers with 50 or more workers must provide their employees with FMLA leave. The law provides qualified employees with up to 12 weeks of unpaid leave while maintaining their job security to care for a sick family member or an employee’s temporary disability.
Employees must be returned to the same position when they return from leave if possible. Employees cannot be terminated for using less than 12 weeks of leave within 12 months, but any day up would lead an employer to terminate the disabled employee.
There are requirements that workers with disabilities must complete to qualify for FMLA.
Concerns about justice or interference with FMLA rights may arise if employment is terminated during or after FMLA absence.
State-Based Laws
Several states have enacted laws to safeguard workers from wrongful termination. The California Family and Medical Leave Act (CFRA) permits eligible employees to take unpaid leave for self-care or serious health conditions, including pregnancy disability leave and reasonable accommodations for disabled employees.
To learn the rules in your state, contact the Department of Labor or an attorney specializing in employment law.
During a long-term disability, it is crucial to realize that an employee’s job is not always guaranteed.
Employers reserve the right to terminate employment after a specified period of disability leave or if it becomes evident that the employee cannot return to work, depending on the contract terms.
A video containing examples of when an employer can terminate a disabled employee.
Best Practices for Termination
Suppose all other options have been exhausted and the employer confirms that the termination is unrelated to the disability and that the employee does not meet legitimate job requirements even after providing reasonable accommodations. In that case, the employer may terminate the employee under the guide.
It may entail the following process,
Give a Warning
Only terminate an employee with notice. The employer must ensure that it monitors the employee’s performance and bring these records to the termination meeting. It should also include any warnings or other mentoring details you provide.
Hold a Formal Meeting
If it turns out that firing an employee is the best option, then a company must arrange a formal meeting to end the working relationship. A representative from human resources or a legal presence during the session is recommended.
At the meeting, give the employee printed information about why they are being terminated, the company’s rules, and any information about retirement or disability benefits that could help..
One should also be ready to answer the employee’s questions or deal with any worries they may have.
Provide Clear Reasons
When informing the employee of their dismissal, communicate the reasons for the decision explicitly. Ensure that it has nothing to do with their disability and is based on their job performance or other valid factors.
Even if the employer himself did not meet the employee’s request for accommodation, the employer should document that fact before terminating the job. While not mandatory, it is strongly recommended.
The refusal of requested accommodations should explain why the company cannot meet them in plain, simple English with as much detail as possible.
Maintain Confidentiality
Maintain the confidentiality of the employee’s medical information and disability-related details throughout the process. And do not judge the employee based on preconceived notions or assumptions about their impairment.
Providing Other Opportunities or Job Duties
Also, the employer has to consider whether the person could succeed in a new role or in a different position or section before deciding to terminate them. Then, these suggestions must also be discussed with the disabled employee.
Giving the employee yet another chance is still another alternative. Because targeting those with disabilities would not be a reasonable accommodation and might be seen as discrimination against employees without disabilities, the policy should be adopted company-wide.
Provide Evidence for Non-Discriminatory Termination
When an employer terminates a disabled employee, having the right “paper trail” can make all the difference. Even though it is not necessary, it is a good suggestion. A proper record should have
- Names of witnesses
- Dates
- Time
- Place
- Other important information about violations directly related to the reason for terminating them
- A track record consistent with that of other workers evaluated as performing at a similar level
In the end, before going ahead with severe disciplinary actions, one should check to see if the event that led to the final warning or the decision to fire someone was thoroughly investigated.
Consult HR and Employment Lawyers
It is wise to seek legal advice before, during, and after the termination procedure.
Consult with the human resources team or outside professionals to ensure all legal and ethical factors are met during the termination process. Also, by working with attorneys, the company can lessen the likelihood of legal trouble.
Further Support
If available, provide the employee access to post-termination support or counseling services. It is also suggested to give terminated disabled employees a way to get in touch with HR or a specific person to talk to if they have any questions or worries in the future.
Employers should remember that dismissing a disabled employee should only be done as a last resort. It is the responsibility of employers to investigate all possibilities of accommodation and to consider the particulars of each situation on a case-by-case basis.
Post Termination Rights
A terminated disabled employee has the legal right to apply for and receive unemployment benefits under federal law. The employee may also look into FMLA disability leave alternatives if they need further time off to deal with their health.
Employers have a responsibility to help their departing workers make a smooth transition, whether supporting them in finding new employment, such as part-time or sit-down job opportunities for the disabled in case of long-term disability, or helping them maintain their current health insurance plans.
Employers can also consider offering a generous severance package with financial assistance and medical coverage. The aid can help ensure the terminated worker’s financial security during the transition. Factors such as the duration of employment and corporate policy can affect severance eligibility and the amount.
Other options for which an employee can move forward are as follows,
The COBRA Coverage
For a set time upon termination, disabled workers can keep their employer-provided health care coverage if they qualify under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
The COBRA allows individuals to keep their health insurance coverage while employed, but at their own expense.
State Law
Additional health insurance continuation options beyond COBRA are available under the rules of several states. Disabled employees need to research their alternatives for maintaining health insurance at the state level.
Continued ADA Protection
Even after termination, the Americans with Disabilities Act (ADA) continues to protect disabled employees. They may pursue legal action if they believe they have been subjected to disability-based discrimination.
Wrongful Termination
If a disabled person is fired for no other reason than their disability, the employer may be held accountable for damages caused by the wrongful termination.
Employees may need help proving that their dismissal had nothing to do with poor performance or rule-breaking. As a result of such problems, employees who feel they have been unlawfully fired under disability discrimination are advised to consult with an experienced employment law attorney.
Legal recourse for an employee who has been unlawfully terminated based on an employee’s disability may vary depending on the specifics of the case and the applicable legislation.
Rehiring, back pay, compensatory damages, and even punitive penalties in cases of extreme wrongdoing by an employer are all possible outcomes of an ADA claim.
Betsy Havens, an attorney specializing in employment law, outlines what you may do if you’ve been fired from your job due to your disability.
Real-Life Expert Opinion on Termination
Rajyashree Tripathi, a human rights advocate, stated in a forum that the ADA safeguards the employment rights of disabled individuals. The law protects the right to equitable employment compensation and opportunities for advancement. Not only are disabled workers entitled to safe working conditions, but their employers must also make reasonable accommodations. Nevertheless, the ADA does not protect against disqualification, incompetence, or poor performance. The employer may propose a different position or assignment if the employee cannot perform the assigned tasks. Disability cannot, however, be used as a basis for discriminatory hiring and dismissal practices.
Peri Collins, an attorney, shared that it is legal to fire disabled workers in the United States if they cannot do their essential functions despite being provided with reasonable accommodations, and if no vacant position exists to which the employee can be transferred, it is legal for the employer to terminate the employee However, this is all dealt with on a case-by-case basis.
A video showcases some expert-based tips by experts on conversing when terminating an employee.
Conclusion
Terminating an employee with a disability requires a meticulous and compassionate approach, and the grounds for the termination must be fair and not based on discrimination. However, the choice must still be implemented with compassion, dignity, and legality.
Employers may successfully manage the problematic position while respecting the rights and dignity of the employee’s disability if they adhere to legal laws, keep detailed paperwork, consult with legal counsel, and prioritize fairness.
