Firing someone who is disabled

On the one hand, attendance is an essential function of most jobs. On the other, allowing an employee to take some leave to recuperate might allow the employee to return to work at full strength more quickly.

Ultimately, courts will look at your job duties, how much time off you needed, and how your employer has treated requests for time off from employees without disabilities, among other things. If you were fired in any of the following circumstances, you should consider talking to a lawyer about a disability discrimination lawsuit:. If you want to pursue a wrongful termination case against your employer, there are a few steps you will need to take.

Below, we explain the process of filing a wrongful termination lawsuit and what kind of compensation you can expect to recover. Before you can sue your employer for disability discrimination, you must file an administrative charge of discrimination with a government agency.

You can file your charge with the Equal Employment Opportunity Commission EEOC , the federal government agency that enforces the ADA, or in some cases, with your state's fair employment practices agency. You have either or days to file your charge, depending on your state's laws. In your charge, you must describe your employer's actions and why you believe they were discriminatory. The EEOC, or your state's agency, will contact your employer about the charge.

It may investigate, try to mediate or settle the dispute, or even sue your employer on your behalf although this is exceedingly rare. If you want to file a lawsuit right away, you can ask the EEOC or the state agency to issue you a "right to sue" letter, stating that you have met the requirement of filing an administrative charge and may now file a lawsuit.

But don't request this letter until you are ready to proceed: You have only 90 days after receiving the letter to file a federal lawsuit.

If you win your disability discrimination lawsuit, you can ask the court to reinstate you that is, to give you back your job. Often, however, this just isn't feasible, given how much time has passed and the negative feelings that have likely built up between you and your former employer. You can collect as much as you lost in back wages and benefits. However, federal law limits how much you can be awarded for emotional distress, out-of-pocket losses such as the costs of looking for a new job , and punitive damages.

If you are considering bringing legal claims against your employer for wrongful termination, you should talk to an experienced employment lawyer right away. A lawyer can assess the facts of your case, let you know how strong your claims are, and advise you on how much you might expect to collect in damages. A lawyer can help you file an administrative charge, negotiate with your employer, or arrange a mediation to try to settle your claims.

Especially if you decide to file a lawsuit, you will want to have a lawyer representing you each step of the way. You can find out much more about finding and hiring the right lawyer for your disability discrimination case at our Asserting your Rights Against Discrimination page. To find a local employment lawyer, check out Nolo's Lawyer Directory. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.

The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed.

A comprehensive list of possible reasonable accommodations can be found here. The ADA permits an employer to request medical information or order a medical examination when it is job-related and consistent with business necessity. The scope and manner of any inquiries or medical examinations must be limited to information necessary to determine whether the employee is able to perform the essential functions of the job or can work without posing a direct threat.

The employer may choose among reasonable accommodations as long as the chosen accommodation is effective. As part of the interactive process, the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability.

If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective. A determination of undue hardship should be based on:. Although disability cases are decided on a case-by-case basis, the fact remains that if the employer can prove that it could not provide reasonable accommodation to enable the person to do the job, then it is legally permissible to terminate.

However, it is considered a best practice to provide the employee a written response to the request for accommodation noting that the employer has engaged in interactive dialogue and identifying which accommodations the employer can offer to the employee, and which may have been considered but would pose an undue hardship to the business.

The denial should be written in plain language with as much specificity as possible, and should identify the person who made the decision.

Additionally, the written response should include both employee and employer responsibilities with respect to the interactive process and ongoing performance evaluation. A proper paper trail includes:. Consider what prior performance reviews look like. Are they consistent? Finally, ask yourself if the incident which triggered the final warning or discharge was carefully investigated prior to taking serious or final disciplinary action.

If the employee has a confirmed disability recognized under the ADA and is otherwise qualified, the employer has a duty to engage in the interactive process to consider reasonable accommodations which might enable an employee with a disability to enjoy equal employment opportunities. Your email address will not be published.

Save my name, email, and website in this browser for the next time I comment. By subscribing to our mailing list you will get the latest news from us. Here are 11 questions to consider when performing a risk analysis prior to terminating an employee with a disability: 1.

What is the ADA? The ADA has two separate components: A prohibition against differential treatment of disabled employees.

An affirmative duty to reasonably accommodate disabled employees, who can perform the essential functions of their position, unless doing so would impose an undue hardship on the employer.

Are we covered by the ADA? Is the employee disabled under the ADA? Here are some questions to help determine whether a physical or mental condition is considered a disability under the ADA: Is the condition short-term and temporary?

These are generally not disabilities under the ADA. Does it restrict the employee from only a single job, parts of a job, or certain tasks? What medical evidence exists to support the claim?

Is the employee otherwise qualified? What exactly are the essential functions of the position? Also, if there was an opportunity to select an accommodation that required less effort on your part while still helping to remove the success barrier, you can provide that. Still, again, the reasoning should be documented.

The evaluations should speak to qualitative and quantitative data points and facts supporting your claims about the assessment. Along with your evaluations, you should also document other occurrences leading up to the termination. For example, if the employee receives reprimands or warnings, be sure to report them.

Include important information such as dates, times, places, the violation, the disciplinary action, and even witnesses if they were present. Your company should have a documented procedure for firing employees , and it should be consistent across the board. Before terminating an employee , ask yourself whether they would thrive in a different position or a different department. Another option includes simply giving the employee another chance.

Business Management Daily. Employment Law Termination. Quiana Darden.