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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 15836
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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I have an associate who had a seizure while at work. She stated

Resolved Question:

I have an associate who had a seizure while at work. She stated this is something that has happened in the past but hasn't happened recently. The following day she went to her Dr, he referred her to a Neurologist. She had a CT Scan and it came back abnormal. The Neurologist provided a Dr. Note stating she must be off for 2 weeks until they are able to do another scan. This associate has no time available to cover any of her time off. She is not eligible for FMLA, she has only been with the company since September of 2012. She works in a 1 person office, meaning if she is not at work, the office remains closed. What are the repercussions if I choose to terminate? Are there any?
Submitted: 1 year ago.
Category: Employment Law
Expert:  wallstreetfighter replied 1 year ago.

wallstreetfighter :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification

wallstreetfighter :

This is an unfortunate situation, how many employees do you have?

Customer:

over 100

wallstreetfighter :

Does she have any vacation or sick days?

Customer:

No, none. She has used all of her sick time and she doesn't have any vacation because she hasn't been here a year.

wallstreetfighter :

Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers.

wallstreetfighter :

In this type of situation, the employee can be terminated, however if the reason is the seizures, they could be found liable for discrimination,

wallstreetfighter :

The ADA requires employers to provide adjustments or modifications -- called reasonable accommodations -- to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability. Not all employees with epilepsy will need an accommodation or require the same accommodations, and most of the accommodations a person with epilepsy might need will involve little or no cost. An employer must provide a reasonable accommodation that is needed because of the epilepsy itself, the effects of medication, or both. For example, an employer may have to accommodate an employee who is unable to work while undergoing diagnostic tests to determine the reason for her seizures or because of the side effects of medication. An employer, however, has no obligation to monitor an employee's medical treatment or to make sure she is getting enough rest or taking medication as prescribed.

wallstreetfighter :

In this type of situation, the best course of action is to provide the employee unpaid leave,

wallstreetfighter :

and if the employee is found to have a disability, such as epilepsy, the employer should try to make reasonable accommodations,

wallstreetfighter :

Another option in these types of cases, is to have her sign a release, and offer her a severance to leave,

wallstreetfighter :

It is possible for the employer to terminate her now, however they will have to prove that reasonable accommodations, for her disability would be too much of a burden for the employer.

wallstreetfighter :

Also, she is not entitled to any time off, so even if she has a doctors note, the employer does not have to provide such days off,

wallstreetfighter :

the only problem is that she can claim the reason was the disability,

wallstreetfighter :

while the employer can argue the reason was her needing to miss work,

wallstreetfighter :

It is a tricky issue, and is up to the employer.

wallstreetfighter :

Under the EEOC rules "An employer never has to provide any reasonable accommodation that causes undue hardship, meaning significant difficulty or expense. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business."


Every request for reasonable accommodation should be evaluated separately to determine if it would impose an undue hardship, taking into account:



  • the nature and cost of the accommodation needed;

  • the overall financial resources of the business; the number of persons employed by the business; and the effect on expenses and resources of the business;

  • the impact of the accommodation on the business.


If cost is an issue, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. Also, to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if s/he will pay the difference.

wallstreetfighter :

So if the employer has to hire a new employee, that would be an undeu hardship

wallstreetfighter :

undue hardship

Customer:

OK, that answers my question... THANKS!!

Expert:  wallstreetfighter replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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Expert:  wallstreetfighter replied 1 year ago.
Good luck, and if you have any further questions please do not hesitate to ask.

If satisfied please provide us with positive feedback.
Customer: replied 1 year ago.


I am back. Same emploXXXXX, XXXXXe issue. She has been out since 5/28/2013. Her first Doctor's note put her out through June 12th. She then provided another Doctor's note that purs her out through the 24th. Still the Doctor's have found nothing wrong with her, she just can't work. On the 25th, she says she is supposed to be checked into this hospital for 7 days for them to run additional tests. This puts her out of the office for more than 4 weeks, with no pay. She originally had no vacation or PTO and is not covered under FMLA due to the fact she has only been here since September. This is causing a significant hardship for the company because that location has been closed and it looks like it may not open for another 3 weeks. What rights do I have here? I would like to terminate her employment due to the hardship we are faced with here. That office can not be closed for that long. What repercussions will she have?

Expert:  wallstreetfighter replied 1 year ago.
If she is not entitled to FMLA leave, and you would be able to terminate her, as Missouri is an at will state, and she has no other job protection leave available from the state.

Also, the fact that her absence would cause you an extreme financial hardship would be valid justification, if she had any leave available.
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 15836
Experience: 14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
wallstreetfighter and 5 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.


OK, thank you!!!

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