Devoted to Corporate Attorneys, Corporate Lawyers, and Corporate Counsel

The following is not meant to be legal advice, and may be outdated research.

The question is whether an employer can discharge someone who is on workers’ compensation, under the American Disabilities Act (ADA), for staying out of work too long because of an injury.

For example, an employee discharge for not being able to work for 12 months after an injury that becomes a disability. 

If the employee recovers from the injuries, the employer may not discharge the employee.  The employer may not discharge also when the employee is able to perform the job functions with reasonable accommodations that will not impose an undue hardship on the employer.  The employer may not discharge the employee based on a record of a past injury or perceived disabilities. 

However, if the employee does not recover, the ADA requires the employer to make reasonable accommodations to enable the employee to perform, but the employer is not required to retain the employee if the employee is not able to fulfill the job functions, while someone else can.  Thus, if the employee had been out of work for so long that it is an undue hardship for the employer to continue without someone performing the employee’s job functions, the employer would not violate the ADA by discharging the employee.

Source:  LRP Publications, Americans with Disabilities Act law, Regulations & Interpretive Guidance, pp. TAM-1 – TAM-173 (1993).