Employee out on disability commits felony - can we fire him? 12-07-2005

One of our employees is out on short-term disability. Since the employee has been out, he committed and pleaded guilty to a felony crime. The company was going to terminate but received a letter from his attorney stating that we cannot terminate while he is on disability. The employee's wife called to inquire about the long-term disability policy for our company. Are we obligated to keep him as an employee under these circumstances?

Rita Risser replies:

You cannot fire an employee for going on disability. However, that is different than firing an employee for a legitimate reason who just happens to be on disability. Assuming that you always fire (or refuse to hire) people convicted of felonies, you could terminate him for that reason. Presumably, the employee is now looking at jail time, so you can also terminate on the basis of not being available to work.

The problem regarding the long-term disability is that, if the time for him to be eligible for long-term is already here, then you may have to give the benefit because you didn't already terminate him.

I highly suggest you contact a local attorney immediately to figure out your options.

Good luck

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