ADA & Disabilities, Leave Management, Policy, and Compliance

Ask the Expert: Can We Terminate Employee with No Return to Work Date?

Question: What’s the appropriate process for terminating employees without a return-to-work date and no Long-Term Disability (LTD)?

return to work

Answer from the experts at HR.BLR.com:

Thank you for your inquiry regarding terminating an employee who has no return-to-work date and no LTD.

If the employee has exhausted any FMLA leave to which he or she is entitled, the employer should consider whether the Americans with Disabilities Act (ADA) requires the employer to provide a reasonable accommodation for the employee. The ADA requires an employer to provide reasonable accommodation for an employee’s disability unless doing so creates an undue hardship.

An extended leave of absence is a type of reasonable accommodation if it would allow the employee to perform the essential functions of the job when she returns.  Before terminating employment, an employer should be sure there is no reasonable accommodation that will allow the employee to perform the essential functions of his or her job.

Reasonable documentation. When the disability and/or the need for accommodation is not obvious, the employer may ask the employee for reasonable documentation about her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which she needs a reasonable accommodation.

Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the employee needs an accommodation. An employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation.

In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care provider.

As an alternative to requesting documentation, an employer may simply discuss with the person the nature of her disability and functional limitations. It would be useful for the employer to make clear to the employee why it is requesting information, i.e., to verify the existence of an ADA disability and the need for a reasonable accommodation.

Indefinite leave.  According to EEOC guidance, employers “have no obligation to provide leave of indefinite duration.  Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations.

Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctor’s note says that the employee is expected to return around the beginning of March) or give a time period for return (e.g., a doctor’s note says that the employee will return some time between March 1 and April 1). If the approximate date of return or the estimated time period turns out to be incorrect, the employer may seek medical documentation to determine whether it can continue providing leave without undue hardship or whether the request for leave has become one for leave of indefinite duration.”