Articles – Dismissing Disabled Workers – What’s Legal?

The following column, authored by Kathy Prentice, originally appeared on the website of office.com, in the Industry Focus section, Law and Legal Services, on December 6, 1999, and is reprinted with their permission:

Dismissing Disabled Workers – What’s Legal?

The best thing an employer can do is to consult experts.

Your company is downsizing, and your job is to draw up the layoff list. One of your employees just returned to work from a disability leave after losing his eye on the job. Can you let him go? Or would you be opening your company up from a discrimination suit?

“The law is very complex and the courts are all over the place on it,” says Chicago-based employment and labor attorney Eugene Hollander. But the bottom line is employees shouldn’t look for preferential treatment, and employers shouldn’t use cutbacks as an opportunity to dump disabled workers.

If you employ 15 or more workers you must comply with the Americans with Disabilities Act (ADA). Most states have their won statutes, some softer and some tougher than the federal regulations.

The next screening step is workman’s compensation claims. “You can’t discriminate against someone filing a claim, or you could be found guilty of retaliation,” says James L. Carroll, senior partner with Carr, Flora & Carroll in El Paso, Texas.

Carroll’s advice? “Retain counsel. The best thing an employer can do to safeguard a reduction in force situation is to consult experts.” It can save dollars. Defending a suit often costs in the $100,000 range. That is if you win.

After reviewing applicable laws and any contracts (union and non-union), objective criteria top the list when trimming staff. “And multiple managers must use the same criteria after letting go of anyone hired in the last six months, and anyone with a performance review average or below,” says Karin Backstrom, head of the labor and employment division at San Diego-based Hinchy, Witte, Wood, Anderson & Hodges.

“In real estate they say ‘location, location, location.’ And in human resources that becomes ‘documentation, documentation, documentation,’ says Carroll. “And it follows on the heels of ‘consistency, consistency, consistency.” Make sure there’s a business justification for each layoff, and then document. Don’t take any decision for granted. It could be second guessed by 12 jurors in the cold bright light of a courtroom.”

“Where mistakes come in is not thinking through the process,” says Carroll. Also, fairness counts. Hollander recently defended a salesperson with multiple sclerosis who didn’t meet his quota and was terminated. The company had retained other employees who were not disabled, but who also did not meet their quotas. The outcome was a settlement.

“After you’ve made the decision of who to let go, sit down with your spouse or someone else outside the company and ask them if it makes common sense and it it’s fair.” Says Carroll.

The cost of accommodations – changes disabled employees can request to facilitate their ability to do their job – can actually end up being a reason to keep those workers. “If you’re going to spend all that money for say a special computer for someone, he’s going to be the last person going out,” says Carroll.

If the issue of callbacks arises, disabilities shouldn’t be a factor any more than they were at layoffs. Backstrom recommends using the same criteria for layoff in reverse – seniority of performance.

Whether an employee was injured on the job, or on his own time, isn’t a legal factor. But as a practical matter, it may be better to leave anyone out on leave – disability or maternity – off the layoff list. “They’re more likely to bring a claim against you,” says Backstrom. “And 50 percent end up not returning to work anyway.”