QUERY: An employee has been on disability leave for 10 months.  During that time, his responsibilities have been absorbed by other employees and his position in effect no longer exists.  Does the company have any legal obligation to rehire the employee?

RESPONSE: The following material is found in Ceridian's HR Compliance Reference System:

It depends.  There are a myriad of factors to consider in determining the rights of an employee returning to work after taking disability leave; especially the type of disability leave utilized by the employee.  Was the employee permitted leave via the employer’s short- or long-term disability policy?  Was the employee a “qualified employee” under the ADA?  Was the disability a serious medical condition as classified by the FMLA?

Along with the employer’s workplace policy, the ADA, FMLA, and applicable state laws play a role in an employee’s disability leave and right to reinstatement.  For example, what is the employer’s current workplace policy in regard to an employee’s return to work after a leave of absence; how has the employer implemented such policy in similar situations; and what has the communication been between employer and employee during the 10-month disability period?

Employers may establish attendance and leave policies so long as they are applied uniformly to all employees.  However, an employer may also be required to make adjustments to a leave policy so as to accommodate a worker with a disability.  All these factors may fuel or defeat an employee’s discrimination claim where upon return from disability the employee’s position was absorbed and consequently the employee was not rehired. 

As applicable, the ADA prohibits employers from discriminating against qualified individuals with a disability in firing, conditions, and privileges of employment.  A leave policy that is uniformly applied to all employees does not violate the ADA simply because it has a more severe effect on an individual with a disability.  However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship for the employer.  Where the accommodation does not pose an undue hardship and an employee was terminated while on leave (or attempting to return from leave), this could constitute disability discrimination, on the basis that the employer denied the employee the necessary reasonable accommodation.

On the other hand, the FMLA guarantees that eligible employees who take leave will be given the same job when they return or another job that is equivalent in pay, benefits, and other terms and conditions.  There are both employer and employee requirements that must be met to receive FMLA protections.  However, an employer may terminate an employee regardless of leave status provided that there is a legitimate, nondiscriminatory reason for termination.   A layoff of an employee who is on FMLA leave may be lawful where the decision to terminate that employee is based on the business’ future needs and the skills, experience and expertise of the workforce.

States may also have laws offering similar protections as those offered by the ADA and FMLA, potentially providing a right to reinstatement.  Employers must evaluate their current policies in light of applicable federal and state laws to determine whether an employee returning from disability leave, where the employment position no longer exists, is entitled to reinstatement and whether the employer’s actions, in terminating an employee, can be interpreted as discriminatory.  Obviously, the employer should seek the advice of counsel in the employer’s particular jurisdiction due to the intricacies of both state and federal law in this delicate legal situation.