Termination of Employee

We are in Virginia and I know that our state is a right to work state, however I need to know if there would be any legal issues if we terminated an employee who has not been to work since September of 2016 due to an injury.  He stated that it happened at work so we sent all of the information to workman's comp and it was denied as a WC claim.  He has been under a doctor's care since September of 2016 and we just received a notice that he will be held out of work until the end of February pending surgery. We had to hire another employee to fill the void that was created by this employee being out of work.  Would we have just cause to release him from our employ?


  • 2 Comments sorted by Votes Date Added
  • Have you invoked FMLA (assuming the employee is eligible)?  If not, arguably, the employee still has full entitlement.
  • raycoindric, here is a response from Alexandria (VA) employment law attorney Jonathan Mook. tk

    I am one of the editors of the Virginia Employment Law Letter, which has included articles on a leave of absence being a reasonable accommodation under the Americans with Disabilities Act (ADA). The EEOC takes the position that while an employer need not grant indefinite leave as a reasonable accommodation, an employer needs to consider granting a disabled employee medical leave to allow that employee to obtain medical treatment in order to allow that employee to return to work. Unlike the FMLA, the ADA does not specify any maximum period of time of medical leave that an employer must grant.  The EEOC says that leave must be granted until it would constitute an undue hardship on the employer. This requires a case by case assessment.  Additionally, an employer should consider whether the employee could return to work with an accommodation to perform the essential functions of the job or an alternative vacant job. I trust this helps.

     Jonathan R. Mook, Esq.


    1101 King Street, Suite 610

    Alexandria, Virginia 22314-2956

    (703) 684-4333

    (703) 548-3181 (facsimile)

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