If a company is going through a reorganization due to a merger and lets go of some employees, can it lay off someone who is disabled or who has documented health problems and uses a lot of sick leave but has had excellent performance on the job?

Ann Kiernan replies:

Employers can use any business-related criteria in deciding what positions to eliminate after a merger or during a layoff, such as seniority, skill sets, and performance rankings. BUT, they can't use illegal or discriminatory criteria. Deciding to lay off a good performer because the employee has a disability violates the Americans with Disabilities Act, as well as state laws that bar discrimination against the disabled. Likewise, deciding to terminate an employee because the person has a serious health condition and used sick time (up to 12 weeks/year) violates the federal Family and Medical Leave Act, and similar state laws.

If an employee has documented health problems and uses a lot of sick leave, but the health problems are not considered a "serious health condition" as defined by law, the employee is not protected and can be laid off.

How can you know if the employer has legitimately picked the person for layoff or is just using the layoff as an excuse? You can look at who was laid off and see if those people have anything in common, for example, they all have low seniority. In that case, it looks legitimate. Otherwise, you can file a claim with the U. S. Equal Employment Opportunity Commission and the employer will be required to explain it to them.

When is a layoff or termination illegal? Find out with our Wrongful Termination Checklist.