Can we terminate an employee on disability?

An employee in a company of only 3-4 people was performing to dissatisfaction with a poor attitude, but his manager (owner of the company)was letting it go for the time being because he really needed the employee's mechanical skills for the upcoming 2-3 months. However, the employee went out on disability. Now, the owner would like to let go of the employee, but he is concerned that if he let's go of him while he is on disability, he will be sued. The owner is going to wait until the employee returns from disability and then lay him off stating that there just isn't enough work. However, the owner has hired someone to replace the employee because he really does need someone. The new employee will be starting before the disability employee returns (date of return is unknown as of now). Is it illegal to let someone go by telling them there isn't enough work when you really have replaced them? This would be done to avoid letting the employee go while on disability. Help!

Rita Risser's Response:

First the good news. The Americans with Disabilities Act does not apply to companies with fewer than 15 employees. California law applies to 5 or more employees, New York I think is 4 or more, and I believe that is the only state with that low a threshold. As my beloved ex-husband used to say, what he learned from living with me is never have more than 3 employees.

If the employee is out due to a workplace injury, workers compensation applies. This is a complicated area. You can't discriminate on the basis of the injury. You have to treat the employee the same as if he never left. It sounds like, in the normal course of things, he would have been fired. So technically, based on the information you've given me, it sounds like you could terminate his employment. However, other lawyers recommend a more conservative approach. One idea is to characterize it as a disability retirement. Please contact a local attorney immediately.

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