Legal Question in Employment Law in California
Background: California located Grocery Store . Employee is a Butcher. Group employs under 50 employees, but over 15. No LTD insurance contract in place.
We have an Employee (with five plus years of employment with us) who has been out on an employer approved LOA, due to a non-work related back injury/disability. He is being told by his doctor that should he be able to return to the working world, he will not be able to continue working as a butcher,
Our employees are aware of our LOA policy by virtue of their employee handbooks "We have held his position open during these last six months however, we need his position to be filled before the holidays.
Are we within our rights to terminate this employee, offer COBRA and hire a new employee?
Thank you in advance for your prompt attention to these questions.
Scott Lauderdale
scottl@lauderdaleinsurance,com
Cell Phone: (209) 482-5182
1 Answer from Attorneys
Since you employ less than 50 employees and the employee, in question, has been out for more than 12 weeks, there is no requirement of a job guarantee for the same or similar position. However, that does not end your responsibility as an employer.
If you are aware that this employee suffers from a disability that limits a major life function, you have an obligation to engage in, what we call, an interactive process, designed to determine what the extent of the disabled employee's limitations are and whether you can accommodate those limitations, as long as such accommodations do not create an undue hardship on the company.
This means that, if you have been advised the employee can no longer work as a butcher, you must determine whether the employer is qualified to perform the essential functions of another position your company has open and available. You are not required to create a position for the employee. But if there is an open position the employee can perform, allowing the employee to return to that position would be considered a form of reasonable accommodation.
Disability discrimination is a very complex area of law. It would be wise for you to consult with an experienced employment law attorney before you make the decision to fire the employee.
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