Can I be fired while I am on disability leave – what’s the deal?
Short answer – yes, but....
Can I be fired while I am on disability leave –but I’m on short term/long term disability leave?
Short and Long Term disabilities are not job protected. But, there are cases where you may qualify for leave under the FMLA and/or the ADA. The FMLA provides you with job protection, and the ADA protects you from discrimination on the basis of your disability. We detail your protections under the FMLA and ADA below.
Can I be fired while I am on disability leave –isn’t it discrimination?
Not necessarily, but it might be. There are plenty of legal reasons for an employer to fire you. One reason may be that you are on leave indefinitely and that cannot be accommodated by the employer. Another reason may be economic/business necessity. Just because you were terminated and disabled/on leave is not enough – you need to prove that you were terminated because you were disabled/on leave.
The Americans with Disabilities Act (“ADA”) prohibits employment discrimination on the basis of disability (or perceived disability). The ADA also requires the employer engage in an “interactive process” to determine whether your disability can be “reasonably accommodated.” Sometimes, a leave of absence may be a reasonable accommodation – at a minimum, your employer is required to investigate/consider (i.e. engage in the interactive process) whether this is possible.
Ultimately, it comes down to why the employer made the decision to terminate. If the decision is made because of your disability, it very well may be illegal.
Can I be fired while I am on disability leave –what about the FMLA?
The Family Medical Leave Act (“FMLA”) is a federal law that applies to employers that have 50 or more employees. Under the FMLA certain employees may take up to 12 weeks of unpaid leave for certain reasons, like a serious health condition. Although FMLA is “job-protected” (meaning you should be returned to your prior or equivalent position), you can still be terminated while on FMLA if the reason is not related to the leave and is not otherwise not discriminatory. If your employer can show that the decision to terminate is unrelated to the FMLA leave, it is legal.
I was fired while I was on disability leave - What should I do?