Online Legal Documents Can Help You Violate the Law: Terminating for “Permanent Disability”

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This is the third article in my series about online legal documents and whether they are worth the money. I have been analyzing an employment contract that I purchased through lawdepot.com. My first post dealt with the general disclaimer that the site posts, precluding it from malpractice claims because it allegedly doesn’t give legal advice, while the second one dealt with an overtime provision that is illegal in Minnesota and one that no employer should include.

Likewise, this post deals with another provision that is illegal not just under Minnesota law but under federal law. It deals with the employer’s right to terminate an employee for “permanent disability.” Read on:

Violation #2: Potential Disability Discrimination Claims

This provision made my mouth drop. I find it hard to believe that a site that claims to have its documents created and maintained by lawyers would include such a provision, which reads: “The Employer has the sole option to terminate this Agreement in the event the Employee, during the course of this Agreement, becomes Permanently Disabled.” Permanently Disabled is defined as:

[When the employee], during the term of this Agreement, because of ill health, physical or mental disability or for other causes beyond the Employer’s control, she will have been continuously unable or unwilling or will have failed to perform her duties under this Agreement for 60 consecutive days, or if, during any year of the term of this Agreement, the Employee will have been unable or unwilling or will have failed to perform her duties for a total period of 120 days, irrespective of whether or not such days are consecutive.

Wow. The Family and Medical Leave Act (FMLA) requires an employer with 50 or more employees to provide 12 weeks of unpaid, job-protected leave to an eligible employee who has a serious medical condition. According to the lawdepot.com document, an employee who has taken just 2/3 of a FMLA leave (60 days) is defined as “permanently disabled” and can be terminated. Terminating an employee who is on FMLA because the employee is still not able to return to work because of the disability or medical condition is illegal. Following this provision of the document would also be a lawsuit waiting to happen. The other definition of “permanently disabled” (unable to work 120 days, irrespective of whether or not such days are consecutive) is also very likely in violation of both state and federal disability laws.

The Minnesota Human Rights Act and the Americans with Disabilities Act require an employer with 15 or more employees to provide a “reasonable accommodations” to an employee with a disability who is able to perform her job with or without a reasonable accommodation. It is widely agreed that short-term leave can be considered a reasonable accommodation. Thus, when an employee has finished his or her FMLA leave and is still unable to return to work, the employer should consider whether additional leave can be granted as a reasonable accommodation. Courts have stated that an additional 12 weeks of leave may be a reasonable accommodation in these cases. To automatically terminate an employee because she cannot return at the end of the 120 days would likely lead to a claim of failure to accommodate under state or federal law.

In addition, it could happen that an individual returns from 12 weeks of FMLA leave and then takes intermittent or additional leave as a reasonable accommodation. However, according to this provision, an employer could legally terminate that employee if those absences total more than 120 days during the year. This goes against both federal and state anti-discrimination laws. Terminating the employee as allowed by the provision would be risking a lawsuit.

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