Legal Question in Disability Law in Kentucky

Birth defects

"I have a slight birth defect and when my employer hired me knew full well of my condition. I'd been employed by them for 5 years now. I didn't have any trouble with it my whole life until recently I started having medical problems related to it. My question is-can an employer terminate a person when they see that the employee is going to be off from work for an undetermined amount of time (more than 12 weeks)and then suggest that when that employee's medical problem(s) get better to reapply for their job back? (That's after losing all medical insurance benefits)."


Asked on 4/27/99, 12:52 am

1 Answer from Attorneys

Dymond Steven Steven H. Dymond P.C.

Re: Birth defects

While your questionis complex and does not provide sufficent info to give a complete answer, Iwill try to give you some general information. First under the Americans with Disabilities Act, if a major life activity is affected due to your disability, such as walking, talking, breathing, ability to work, etc., then you may not be covered under the ADA. If your employer believes your are disabled (percieves you as disabled) then you are covered regardless of major life activity being affected.

If you are covered under the ADA, you are entitled to reasonable accomodation regarding the performance of your job.. This can mean time off, intermittent scheduleing, etc. The company need not create a position, nor change the essential duties of your job.

Second, your employer must treat you the same as all other employees. Thus if it has a policy which indicates a maximum permissible leave for anyone for any reason, then the employer is within its rights to terminate you. If you are disabled, then you may ask for an accomodation to extend your permissible leave if this will help you perform your job.

Third, you have FMLA rights, and are entitled to reinstatement if you exhaust your 12 weeks of leave and then return at the end of twelve weels. Talk to the Department of Labor for more details

Dymond Steven

Steven H. Dymond P.C.

1444 Wazee Street, Suite 335


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Answered on 4/28/99, 2:35 pm


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