A Publication of WTVP

Is an employer required to continue to employ someone who is unable to fulfill many, but not all, of the essential duties and responsibilities of his or her job? The answer is no, and knowing that answer can benefit both employers and employees.

Illinois is an “employee at will” state, which means that unless the employee has a contract with his employer that limits the reasons for termination or is subject to a collective bargaining agreement, he or she can be terminated for any reason at all, so long as doing so does not violate state or federal law. This means an employee at will cannot be fired because of his race, gender, national origin, or sexual orientation, or because he has blown the whistle on his cheating employer.

But what if he is injured and can’t physically do the job? If an employee is injured away from work, he will likely have to use up all available sick and vacation time until he’s able to return to work. The same applies if he is injured at work. The state worker’s compensation law requires the employer to pay the employee temporary benefits while he is unable to work, but it does not give the employee the right to any additional paid or unpaid leave from his job.

The Family and Medical Leave Act (FMLA) is a federal law that gives employees the right to a medical leave if they have a serious medical condition that renders them unable to perform the functions of their jobs. This act only covers those businesses that employ 50 or more employees during 20 or more calendar weeks. If an employer does not employ more than 50 employees, the FMLA is not a required benefit, although some employers do extend FMLA benefits to its employees voluntarily. Check your employee handbook to determine if your place of business recognizes FMLA leave.

If FMLA leave is available, an employee is eligible for up to 12 full weeks of unpaid leave during any 12 month employment period. Because the leave is unpaid, an employee who is injured away from work and does not have disability insurance may face a serious financial challenge. But the FMLA does entitle employees to take time off, maintain their benefits, and get their job back once the leave is over.

An employer can also impose FMLA leave on an employee unable to perform the essential duties and responsibilities of the job. Under the law, an employer has the right to designate time off as FMLA leave regardless of whether the employee requests the time off. While some employees may object to being placed on unpaid leave involuntarily, the alternative of losing one’s job is probably much worse.

An employee who is unable to perform the essential duties and responsibilities of his job may be terminated. Remember, an employee cannot be let go because he is injured or because he has a pending worker’s compensation claim. Using either reason as the basis for termination is illegal and is likely to generate a lawsuit. Instead, the fact that the employee is no longer able to perform his job, for whatever reason, and has used up all of his available leave time, provides the legal basis for termination.

Courts have held that an employer may fire an employee for excessive absenteeism, even if the absenteeism is caused by a compensable injury. An employer is not proscribed from discharging an employee who is physically unable to perform his work, nor is the employer required to find a new job for an employee who is physically unable to do his original job.

If an employee is not only injured, but becomes disabled, he or she cannot be let go unless the employer is unable to make a reasonable accommodation of the employee’s disability. This protection is provided by the federal Americans with Disabilities Act (ADA), and, to some extent, the Illinois Human Rights Act. ADA is a complicated statute applied to workplaces with more than 15 employees, including state and local governments. It protects individuals with a physical impairment that substantially limits one or more major life activities.

Examples of such physical impairments covered by ADA include: AIDS and its symptoms; asthma; blindness or other visual impairments; cancer; cerebral palsy; diabetes; epilepsy; hearing or speech impairments; heart disease; migraine headaches; muscular dystrophy; orthopedic impairments; paralysis; complications from pregnancy; thyroid gland disorders; tuberculosis; and a loss of body parts. Similarly, the Illinois Human Rights Act protects any employee, regardless of company size, from discrimination due to a disability. The important issue is whether the law considers a particular malady or affliction as a disability. IBI