From the Hotline: Termination If Employee Does Not Return After Surgery

Question: We have a staff member who just had hip replacement surgery and is due back into the office very soon. If he does not return to work, can we terminate his employment?

Answer: Any time an employee is deemed disabled by his or her doctor there is a high potential of liability and risk under both state and federal antidiscrimination laws when terminating employment while the employee is disabled. If considering such an action, seek legal guidance to ensure that you have considered all of the alternatives first. The best practice is to fill the position with a temporary worker while the employee is temporarily disabled to avoid potential claims of discrimination.

If not released back to work by the doctor, your employee will more than likely have protection under the federal Americans with Disabilities Act (ADA) where the regulations require the employer to engage in an interactive discussion and review of potential reasonable accommodations before denying a request for an extended leave. If modified work or a revised or reduced schedule is not an option, strongly consider the extension.

Source:

http://www.eeoc.gov/laws/types/disability.cfm

http://www.eeoc.gov/facts/ada17.html