ADA

Can I Be Fired While On Disability Leave?

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?

Call us!  Or e-mail.  We can help. 

Reasonable Accommodation Under the ADA

The Americans with Disabilities Act (ADA)  requires employers to engage in an interactive process with a disabled employee to determine whether the employer can provide a reasonable accommodation under the ADA to the disabled employee. A reasonable accommodation under the ADA requires that the employee be able to perform essential functions of a position.  Recently, the 2d U.S. Circuit Court of Appeal recently reversed summary judgment in favor of an employer, and returned the case to the lower court for additional factual analysis to determine whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based upon that lateness. McMillan v. City of New York, 2d Cir., No. 11-3932, March 4, 2013.

Rodney McMillan has schizophrenia and has been employed by the City of New York, for ten years. McMillan’s agency has a flex-time policy, and approves tardiness under certain circumstances.  McMillan’s medication can make him sluggish, which resulted in his late arrival to work several times.  The tardiness is a function of the treatment for his condition.

Prior to 2008, McMillan’s tardiness was never a problem.  Then, in 2008, his supervisors refused to approve any more late arrivals.  McMillan requested a later start time, but was told that this was not possible because McMillan would then have to work after 6:00 p.m., after which no supervisors were present.  McMillan also stated that he would be willing to work through his lunch hour, but that suggestion also was rejected.

In 2009, McMillan was fined eight days’ pay for late arrivals and was ultimately suspended for 30 days without pay for his “long history of tardiness.”

McMillan sued the City, alleging violation of the ADA. In support of his claim, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m., so he could arrive late and still work the required 35 hours a week.

The district court granted summary judgment for the City, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job.  On appeal, the Second Circuit reversed, finding that while a “timely arrival is normally an essential function,” the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”

The Second Circuit pointed out the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex time hours and regularly permits employees to “bank” time to cover certain late arrivals, all of which undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours.

The take-away  is that a Reasonable Accommodation under the ADA may require an employer to allow for flexible working time for its employees, where such a reasonable accommodation would still enable that employee to perform the essential functions of his or her position.

Does an Employer Violate the ADA by Requiring Regular Attendance?

The U.S. Court of Appeals for the Ninth Circuit recently came out with a decision about whether attendance is an essential function of the job, and when an employer can terminate an employee for poor attendance even if the absences are caused by a "disability" within the meaning of the Americans with Disabilities Act. *The Ninth Circuit hears appeals from federal district courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands. Its headquarters is in San Francisco.

The plaintiff in the case was a nurse in a neonatal intensive care unit at a hospital in Oregon.   The plaintiff suffered from fibromyalgia and missed a lot of work as a result.  After many years the hospital told her she would have to move to another department where her attendance wasn't as critical.  Plaintiff refused.  Eventually, she was fired for poor attendance.

Plaintiff sued the hospital under the ADA, claiming that she should have been allowed to stay in her position and "opt out" of the attendance policy.

The Court held that regular attendance is usually considered an "essential function of the job," which means that an employer can usually require it.  However, regular attendance is not an essential function in every case.  Some jobs can be performed from home or on flexible schedules – examples include computer programming, blogging, etc.

In these circumstances, telecommuting would help the employee perform the essential functions of the job and most courts would say that the employer has to consider allowing telecommuting as a reasonable accommodation.

But many jobs cannot be performed from home.  These jobs include positions where the job requires face time, personal meetings or interaction, or where the employee must work with on-site items or equipment.

The Ninth Circuit held that the nurse’s job duties require her to work as part of a team, have face time with supervisors, other staff, patients and family.  In addition, the Ninth Circuit held that the nurse’s job involved sophisticated equipment that was only available at the hospital facility.

The take home point is that being able to show up to work is a major part of your job.  An employer has a duty to accommodate your disability, but not every accommodation is reasonable.  If you have any questions, or feel that you are being discriminated against on the basis of disability, please contact us.

What is a Reasonable Accommodation under the ADA?

The Americans with Disabilities Act (www.ada.gov) ("ADA") requires employer to provide “reasonable accommodations” to their disabled employees.  But what exactly is a reasonable accommodation under the ADA? The Code of Federal Regulations defines an accommodation as “any change in the work environment or the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."


In general, there are 3 categories of reasonable accommodations:  (1) modifications/adjustments to the job application process, (2) modifications/adjustments to the work environment, or (3) modifications/adjustments that enable the employee equal benefits and privileges of employment that similarly situated employees without disabilities enjoy.  In general, the disabled employee must inform the employer of his or her desire for an accommodation.

A reasonable accommodation under the ADA may include:

  • making existing facilities accessible;
  • job restructuring;
  • part-time or modified work schedules;
  • telecommuting
  • acquiring or modifying equipment;
  • changing tests, training materials, or policies;
  • reassignment

Recall that the accommodation has to be “reasonable.”  While there is no clear cut test for what is reasonable, it essentially comes down to common sense.  To be reasonable an accommodation has to be practically feasible from the employer’s perspective.  From the employee’s perspective, an accommodation is reasonable when it enables the employee to perform the essential functions of his or her own job and provides him or her with an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.

Too many people misunderstand their rights under disability discrimination laws.  If you have any questions, please contact us for further information.

Employee With Bipolar Disorder Successfully Sues Former Employer for Disability Discrimination

After an extended period of good performance for his employer, The Cash Store, employee Sean Riley requested time off in order to deal with his bipolar disorder.  The Cash Store denied his request and then fired him shortly thereafter.  Reilly had informed his employer about his bipolar disorder before he was hired, even though there is no requirement to tell a potential employer about any medical condition (including mental/emotional disorders ) you may have. Judge Edward Shea of the United States District Court for Eastern Washington agreed with Reilly that he was fired for his bipolar disorder, rather than for the various explanations provided by the employer. The Court ruled that these rationales were merely a pretext for discrimination.

Reilly received $6,500 in back wages, plus an additional $50,000 for emotional pain and suffering.

The Court also issued a three-year injunction, requiring The Cash Store to “train its managers and human resources personnel on anti-discrimination and anti-retaliation laws.”

You can read the full story here:  http://abcnews.go.com/Business/judge-rules-favor-fired-employee-bipolar-disorder/story?id=16079631#.T6Af_XmBz_0.

If you feel that you have been discriminated against on the basis of a disability, please contact us.