Can you fire a staffer on disability leave?

December 2, 2005

My office manager has been on disability for three months. During that time, my other four employees have taken over her tasks, and we're doing quite well without her. Can I eliminate her position?

Q: My office manager has been on disability for three months. During that time, my other four employees have taken over her tasks, and we're doing quite well without her. Can I eliminate her position?

A: If her disability is the result of a work-related accident or injury, covered by workers' compensation, you may be required to reinstate her, depending on the laws of your state. Check with your state's workers' compensation board.

You also might be obliged to hold her position open for her if your state has a law similar to the federal Americans with Disabilities Act. The ADA applies to businesses with at least 15 employees, but some states have enacted laws that apply to smaller employers.

Likewise, although your practice is too small to be covered by the federal Family and Medical Leave Act, your state may have a similar law that may apply to you. The FMLA requires businesses with at least 50 employees to give a worker with a qualified serious health condition 12 weeks of unpaid leave per year, with the right of reinstatement to the job.