Comments on: She called herself ‘fit as a fiddle’ — so how could she sue for disability discrimination? http://www.hrlegalnews.com/she-called-herself-fit-as-a-fiddle-so-how-could-she-sue-for-disability-discrimination/ Up-to-the-minute cases and law impacting HR Fri, 17 Jul 2009 14:01:31 +0000 hourly 1 http://wordpress.org/?v=abc By: Melanie http://www.hrlegalnews.com/she-called-herself-fit-as-a-fiddle-so-how-could-she-sue-for-disability-discrimination/comment-page-1/#comment-1337 Melanie Wed, 10 Sep 2008 21:04:56 +0000 http://www.hrlegalnews.com/?p=238#comment-1337 In the case of the suit that was cited initially... I think some one was snoozing at the wheel. A competent HR professional knows "regarding someone as being disabled (even though they aren't) or a record of a disability" affords protection under the ADA so one would expect they would check the Rehab Act too, if that's what applies to them. Barbara: Regarding "At Will". Most states operate under the at-will doctrine but there are so many exceptions that it isn't frequently used. It is certainly wise to not use "at-will" if you are dismissing someone who could claim discrimination. In your case, you don't need to be concerned about the fact that your state is "at-will" and you are neither unethical or illegal if you do so. You don't have to end their employment but you can (unless you never dismiss anyone who is ill or on leave which is another can of worms). In response to Shayla's "unethical" comment. At our company, any person who has been unable to perform the essential functions of their position for six months is dismissed. We are considered a very compassionate company and I don't think there is anything unethical about this. It's tough to let someone go who is ill and it hurts me every time we do it. But we are, at the end of the day, a business, not a social service agency. Shayla, if you would keep a person "employed" (which, in our company means we continue to provide medical, dental and life insurance) for a year even though they can't work, when do you suggest it is "ethical" to end their employment? There isn't anything "illegal" about this either. The ADA doesn't require you to employ someone who is unable to perform the essential functions of their job (with or without accommodation) and if they can't work at all, well that's the end of the discussion. In the case of the suit that was cited initially… I think some one was snoozing at the wheel. A competent HR professional knows “regarding someone as being disabled (even though they aren’t) or a record of a disability” affords protection under the ADA so one would expect they would check the Rehab Act too, if that’s what applies to them.

Barbara: Regarding “At Will”. Most states operate under the at-will doctrine but there are so many exceptions that it isn’t frequently used. It is certainly wise to not use “at-will” if you are dismissing someone who could claim discrimination. In your case, you don’t need to be concerned about the fact that your state is “at-will” and you are neither unethical or illegal if you do so. You don’t have to end their employment but you can (unless you never dismiss anyone who is ill or on leave which is another can of worms).

In response to Shayla’s “unethical” comment. At our company, any person who has been unable to perform the essential functions of their position for six months is dismissed. We are considered a very compassionate company and I don’t think there is anything unethical about this. It’s tough to let someone go who is ill and it hurts me every time we do it. But we are, at the end of the day, a business, not a social service agency.

Shayla, if you would keep a person “employed” (which, in our company means we continue to provide medical, dental and life insurance) for a year even though they can’t work, when do you suggest it is “ethical” to end their employment?

There isn’t anything “illegal” about this either. The ADA doesn’t require you to employ someone who is unable to perform the essential functions of their job (with or without accommodation) and if they can’t work at all, well that’s the end of the discussion.

]]> By: Shayla http://www.hrlegalnews.com/she-called-herself-fit-as-a-fiddle-so-how-could-she-sue-for-disability-discrimination/comment-page-1/#comment-1331 Shayla Wed, 10 Sep 2008 18:51:14 +0000 http://www.hrlegalnews.com/?p=238#comment-1331 The problem with being an at will employer is that you can terminate an employee for any reason and without notice, as well as an employee can leave an employer for any reason and without notice. I know that I live in a state that is considered an at will state, but for the most part I haven't run into any employers that would actually terminate just because they feel like. I would say that yes and employer could terminate an employee on disability if they live by the at will standards. Most companies would not because it is unethical and could possibly become a legal matter. At my company, we have terminated employees that have been on leave of absence for more than a year, but it is because they have not been approved for disability and have been denied appeals. Other than that, if they have all of their ducks in a row, then it would be fine. The problem with being an at will employer is that you can terminate an employee for any reason and without notice, as well as an employee can leave an employer for any reason and without notice. I know that I live in a state that is considered an at will state, but for the most part I haven’t run into any employers that would actually terminate just because they feel like. I would say that yes and employer could terminate an employee on disability if they live by the at will standards. Most companies would not because it is unethical and could possibly become a legal matter. At my company, we have terminated employees that have been on leave of absence for more than a year, but it is because they have not been approved for disability and have been denied appeals. Other than that, if they have all of their ducks in a row, then it would be fine.

]]> By: R. B. http://www.hrlegalnews.com/she-called-herself-fit-as-a-fiddle-so-how-could-she-sue-for-disability-discrimination/comment-page-1/#comment-1313 R. B. Wed, 10 Sep 2008 14:39:54 +0000 http://www.hrlegalnews.com/?p=238#comment-1313 I think this is a good example of an employer having a preconceived idea that the potential employee has a disability because they have been ill. By treating them as if they are disabled, the individual is afforded protection under the ADA / Rehabilitation Act. This is why it's so important to focus on "can this person perform the essential functions of the job with or without accommodation." I don't know all of the facts in this case, but I do know that a lot of employers eliminate people who have been ill or impaired, but who are now able and desiring to work. It's unfortunate. Regarding your questions, Barbara, it would be helpful to have more information. But basically, assuming this person is unable to work during the year they are waiting for the transplant, an employer is not required to hold a person's job for that length of time. FMLA offers 12 weeks of unpaid leave / job protection. And a disabled individual is required to be able to perform the essential functions of the job, with or without accommodation. If they can't perform to this basic level, the employer would be within their rights to terminate employment. Most couldn't hold a position for that long. I think this is a good example of an employer having a preconceived idea that the potential employee has a disability because they have been ill. By treating them as if they are disabled, the individual is afforded protection under the ADA / Rehabilitation Act. This is why it’s so important to focus on “can this person perform the essential functions of the job with or without accommodation.” I don’t know all of the facts in this case, but I do know that a lot of employers eliminate people who have been ill or impaired, but who are now able and desiring to work. It’s unfortunate.

Regarding your questions, Barbara, it would be helpful to have more information. But basically, assuming this person is unable to work during the year they are waiting for the transplant, an employer is not required to hold a person’s job for that length of time. FMLA offers 12 weeks of unpaid leave / job protection. And a disabled individual is required to be able to perform the essential functions of the job, with or without accommodation. If they can’t perform to this basic level, the employer would be within their rights to terminate employment. Most couldn’t hold a position for that long.

]]> By: Barbara Knapp http://www.hrlegalnews.com/she-called-herself-fit-as-a-fiddle-so-how-could-she-sue-for-disability-discrimination/comment-page-1/#comment-1312 Barbara Knapp Wed, 10 Sep 2008 14:10:56 +0000 http://www.hrlegalnews.com/?p=238#comment-1312 Question: Can a company terminate an at will employee because that employee has been on disability for one year awaiting a lung transplant? Question: Can a company terminate an at will employee because that employee has been on disability for one year awaiting a lung transplant?

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