General Disability Discrimination & Sec 503

[Prozac Kid]

What is the name of your state? Golden State

Any response appreciated. My situation is convoluted and then some, so I'll try and keep it short & sweet.

-If a person requests a LOA due health (FMLA qualified/covered) and is terminated due to business necessity (maybe, maybe not) 2 weeks later without getting a response from employer, what penalties would the employer face? Please exclude back pay remedy.

-An ADA qualified worker is laidoff shortly after stating he cannot perform essential functions of current job (Sr management - a grind). Termination is unrelated to disability - pain++. Worker could possible perform essential functions several months later with reasonable accommodation, but can't work full-time.

Excellent skills, but wary of seeking employment knowing limitations. Pay scale over $100K. Is worker disabled or simply unwilling to seek employment and then have to tell new boss about significant accomodation requests?

 

[cbg]

If a person requests an LOA and is fired under a business necessity, the employer will face NO penalties, regardless of whether the leave qualifies as FMLA or not. If the person would have been fired regardless of whether they applied for leave or not, the fact that they requested FMLA leave is inconsequential. The law does not say that a person who is on/has requested FMLA leave cannot be fired at all; it says that a person who is on/has requested FMLA leave cannot be fired BECAUSE they requested/took FMLA leave. If the business necessity is valid and can be supported by the employer, FMLA does not provide a get out of jail free card.

An employee who is unable to perform the essential functions of their position can legally be fired, regardless of ADA protection. The ADA is designed to make sure employees who CAN, with or without a reasonable accomodation, perform the essential functions are not discriminated against for their disability. It is also not intended to be a get out of jail free card. If the employee can't do their job, the employer has a right to hire someone who can. If the employee is, several months later, able to perform the essential functions on a part time basis with accomodation, the employer might be nice enough to hire them back but is not legally required to do so.

Now, if you'd like to provide some actual details, maybe someone can assess your specific situation.

 

[Prozac Kid]

My conclusions also. The crux of the matter is whether the bussiness neccessity was a pretext or mixed motivate. This company is one that relys on written policies rather than execution of policy - "lip service" to comply with regulations. I'm inclined to move on, but I'm still wrangling over ERISA benefits.

One question related to termination would be what obligation does the firm have to follow its AA plan when taking adverse action against a disabled employee? Firm comes under sec 503.

Thanks for the reply.

 

[Prozac Kid]

Unrelated, but why must the Yankees torture me?