Question: An employee who was working restricted duty as an accommodation under the Americans with Disabilities Act (ADA) was arrested and isn’t able to come to work until further notice. Can we fire the employee now for attendance reasons, or do we have to wait until he is out of jail?
The answer to your question may be different depending on which state law is controlling. Some states have passed legislation that protects an employee’s involvement in legal activities outside of work or in situations where merely an arrest and no conviction has occurred. In South Carolina, for example, you can’t terminate an employee for using tobacco outside of work. So, check first to see if any state law may affect your decision.
In many states, workers are typically employed on an at-will basis, meaning you can terminate them for any reason or at any time. The exceptions to the general rule are that you can’t violate federal or state law with the termination. Employees also must comply with any contractual agreements. In your situation, no South Carolina law would affect the outcome so we’ll focus on federal laws.
ADA
Numerous federal laws, including the ADA, provide protections for employees. While your employee is presently on restricted duty as an ADA accommodation, the arrangement apparently has no bearing on the reason for the termination. Since the employee’s inability to report to work appears to be totally unrelated to his disability, you should review your attendance policies next.
If the employee is violating your policies by failing to report to work (and the failure to report is unrelated to his disability), you most likely will be able to let him go without liability. Incarceration wouldn’t be considered an excused absence, and you should be able to terminate him because the discharge is related to a legitimate business reason and not to his disability.
Be careful, however, if your employee has accrued vacation or paid leave time. Under your policies, he may be able to put that leave toward his absences. Once any paid leave is exhausted, the absences would count toward his unexcused leave and could be counted for termination
Title VII
Another federal law to consider is Title VII of the Civil Rights Act of 1964. While your employee has been arrested, be careful not to convict him or base the termination only on the filing of criminal charges. An arrest is not a conviction, and the employee may be innocent. The Equal Employment Opportunity Commission (EEOC) has addressed the differences between an arrest and a conviction on numerous occasions. The focus of the termination should be the employee’s failure to report to work and not his arrest.
If you’re going to terminate the employee for attendance reasons, the discharge should occur in close proximity to the time of the violation. For instance, if an employee can be terminated under your policy after three unexcused absences, the time to let him go would be after those three absences occur. You don’t need to wait until the employee is out of jail. Waiting may look retaliatory in nature. Again, the reason for the firing is his failure to report to work, and you should follow your normal policies in those situations.
Bottom Line
An employee on restricted duty as an ADA accommodation doesn’t get any extra privileges—or a free pass—and is still responsible for complying with your policies and procedures. One such requirement is to report to work. The important point to remember is that your employee is being discharged for reasons totally unrelated to his disability or any other legally protected status, so, treat him the same as you would anybody else who has unexcused absences and fails to report to work.
Reggie Gay is a Partner with Burr & Forman McNair LLP. He is also the editor of the South Carolina Employment Law Letter, may be contacted at rgay@mcnair.net.