Legal Question in Employment Law in Florida

Re: legal termination.

This is a messy situation because it potentially implicates the Family and Medical Leave Act and the Americans with Disabilities Act as well as workers' compensation. Honestly, it requires a great deal of information in order to render an opinion and is more than can be handled in a short, free response on lawguru.

I can only give you some generalities. Workers' comp. laws give people protection when they return to work. Likewise, if it is an FMLA matter, you must return the person to the same or an exactly equivalent position. (Same pay, responsibilities, hours, etc.) It does not matter that the person did not ask for FMLA protection. If your company has 50 people then you are probably subject to the law and are supposed to apply it when you know of qualifying illness/injury. The employee has to have 12 months of total work for you and 1250 hours of work immediately preceding the leave to be covered. Similarly, you can not discriminate due to a disability, although if the person is back at work with no lingering problems, it probably is not a disability under the ADA.

The exception to all of this is that you can always take action for performance issues. Your problem is that you never did, and now want to prevent the person from returning after injury leave. That looks bad, even if the injury is not the reason.

Your best bet might be to return the person, explain your concerns about performance, and give him/her a performance plan where you spell out exactly what the problems are, what improvement is expected and when, and what the consequences will be (discharge, demotion, whatever) if improvement is not made in that time frame.

If you want to hire an attorney to review this in detail and help you proceed, feel free to email directly to me.

Good luck.

Jeff Sheldon

Jeffrey L. Sheldon

The Sheldon Law Firm

CAVEAT: This is only general advice based on limited facts and knowledge of the situation. It thus can not be relied upon as legal advice nor is the author responsible or liable for any actions by the parties involved in the matter.