Q. "We have an employee no longer physically capable of their job. We have tried to accommodate, but the condition has not improved. Is there anything else we need to do before letting them go?"
Answer:
The first thing you’ll want to do is make sure that you’ve gone through the interactive process under the Americans with Disabilities Act (ADA) and have determined whether there is a reasonable accommodation that enables your employee to work.
The ADA interactive process is a series of employer/employee conversations designed help address (1) the employee’s need for reasonable accommodation and (2) ability to perform essential job functions.
The employer must provide reasonable accommodation unless it causes an undue hardship
Accommodations and undue hardship are case-specific and can be challenged, so we recommend all steps are well documented
An unpaid leave of absence can be considered a reasonable accommodation, if the employee is likely to return to work
The ADA can require leaves beyond the 12 weeks required under the Family Medical Leave Act (FMLA), but not indefinite leave
Be sure to involve the employee’s medical provider in determining whether there are possible reasonable accommodations by providing the employee with a medical inquiry form and job description to give to their doctor. Once you have more information from the doctor about recommended accommodations:
evaluate whether you can provide the reasonable accommodation,
suggest an alternative, or
deny the requested accommodation as an undue hardship
The first two options above are the safest solution and should be tried first. If the employee wants accommodation beyond what you can reasonably provide, you may need to consider termination based on undue hardship.
If a medical provider certifies the employee has a disability under the ADA, proceed with caution and have an employment attorney review your undue hardship defense before proceeding.