Can we lay off an employee who has been out on disability for almost a year?

A commonly held misconception is that an employer can’t lay off an employee because they are on disability.

For absolute job protection, the employee needs to be on a protected leave, such as pregnancy disability leave, and the federal and state family leaves, such as the Family and Medical Leave Act and the California Family Rights Act.

When the employee isn’t subject to those leaves, granting extra time off is something the employer needs to consider. An employer should not have a knee-jerk reaction to terminate employment when the employee needs extra time due to a disability.

Both the California Fair Employment and Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA) require employers to provide a reasonable accommodation to individuals with a disability. To that end, the law requires both the employer and the employee to enter into the “interactive process,” with both sides working to provide options and give input. The employer may not deny or reject an accommodation unless it creates a “undue hardship,” and establishing the undue hardship often is difficult for the employer.

In some circumstances, a reasonable accommodation may take the form of a leave of absence. When the extended leave time becomes lengthy, it begins to get “tricky.” Both the Equal Employment Opportunity Commission (EEOC) and the California Civil Rights Department have issued guidelines asking employers to make concessions to employees who have a disability, to allow additional time off.

Nevertheless, the employer is not obligated to hold a job open indefinitely because the employee has a disability, no matter how genuine the disability may be. This is true even where the employee is receiving benefits through either state disability insurance or workers’ compensation coverage.

In these circumstances, particularly for a longtime employee, it’s advisable to seek legal counsel before acting.

Read more about Disability Leave in the HR Library.