FMLA in New York

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. 

Maternity Leave in New York

Although there is no explicit law regarding maternity leave in New York, there are several avenues by which employees (both men and women) may obtain time off to care for a newborn child and/or during a pregnancy.  Maternity leave in New York encompasses two different types of time off:  family leave and medical leave. Family leave, the first category of maternity leave in New York, refers to time off from your job to care for your newborn.  Family leave may be given pursuant to the Family and Medical Leave Act of 1993 (FMLA), which is a federal law that grants all parents (including fathers and adoptive parents) 12 weeks of leave to care for a newborn child within one year of birth.  An employee may also take leave under the FMLA to care for a spouse, child or parent who has a serious health condition.  If an employee begins the 12 weeks prior to giving birth, you do not get extra time after the birth.  However, in order to be eligible for leave under the FMLA an employee must have (1)  been employed by the employer for at least 12 months (these do not have to be consecutive months), (2) worked at least 1250 hours during the 12 month period prior to the leave,  and (3) been employed at a location where the employer has 50 or more employees within 75 miles.  The leave granted under the FMLA is unpaid.

Medical leave, the second category of maternity leave in New York, refers to the period of time during which you are medically unable to work.  In New York, the primary avenue used to take pregnancy related medical leave is the employer's short term disability plan, which provides (a portion of) income replacement for an employee’s own disability.  This paid maternity leave in New York program is mostly used by women experiencing complications of pregnancy and/or recovering from childbirth.  Under this leave, the standard weekly amount is capped at $170 and the standard benefit length is four to six weeks prior to delivery, and four to six weeks after birth.

In addition to short term disability, an employee may be able to collect unemployment compensation if he or she quits his or her job because of the illness or disability of a member of the individual's immediate family.  Essentially, the law was expanded to include in the definition of "good cause" (an employee needs to have good cause to quit his job in order to qualify for unemployment compensation), a "compelling family reason" (and the definition of a compelling family reason includes the "illness or disability of a member of the individual's immediate family."

Lastly, with respect to maternity leave in New York, New York City passed a new law in 2013 that requires paid sick leave for employees working for private sector employers (government employees are not covered): small businesses with less the 5 employees must provide 5 days of unpaid sick leave per year, small businesses with 6 to 19 employees must provide 5 days of paid sick leave per year and larger employers with 20 or more employees must provide 9 days of paid sick leave per year.



FMLA Notice Requirements

What are the FMLA notice requirements? In other words, what kind of notice do you have to give for FMLA leave? Assuming you are an eligible employee under the FMLA, the below article addresses what notification is sufficient

FMLA Notice Requirements - Leave is Foreseeable

If the your need for FMLA leave is foreseeable (e.g birth of a child, scheduled surgery, etc.) you are required to provide your employer with at least thirty days advanced notification before the leave is scheduled to begin. Moreover, you should do so in writing – and keep a copy for yourself.

Is the leave foreseeable or not?

FMLA Notice Requirements - Leave is Unforeseeable

Not all leave is foreseeable. Emergencies happen which require a person to go on leave without prior notice. When this happens, notice must be given as soon as practicable. There are no hard and fast rules with respect to what “as soon as practicable” means, you should make a good faith effort to let your employer know about your need for leave as soon as you can. Obviously, with medical emergencies, advanced notice is not required as it is impossible to provide advanced notice during an emergency.

When the leave is foreseeable (like pregnancy, scheduled surgery, etc.), the employee should provide at 30-days’ advanced notice.

FMLA Notice Requirements - What should the notice say?

You should also provide your employer with information when you provide notice of your need for leave. You must, at a minimum, tell your employer that you need FMLA leave, when you will need it, and how long you would need it for. The best way to handle this, though, is to provide your employer with a written notification indicating why you need leave and how much leave you need. Your request for leave does not have to specifically reference the FMLA or assert your rights under the FMLA

Can my employer look into my medical condition?

When the leave is for you (as opposed to a family member), your employer is allowed to look into the nature of your health condition and may request a medical certification from your health care provider to justify the need for leave. If your employer asks for your information related to your leave, you are required to respond.

If you have questions or concerns, please contact us for a consultation.

NY FMLA Lawyers

NY FMLA Lawyers

What can my employer do during my FMLA leave?

Our New York Employment Lawyers are regularly asked about what an employer can do when an employee is on FMLA leave.  Here are some points to consider: Your employer can make you use your paid time off.  Your employer may require you to take paid leave concurrently with their unpaid FMLA leave.  This may include vacation time, paid personal leave, and paid sick and medical leave.  The employer may waive any procedural requirements for the taking of paid leave and you are always entitled to their unpaid FMLA leave even if you do not meet the employer’s requirements for taking paid leave. If the employer is not making you use your paid time off for the intermittent leave, you should be entitled to use it like anyone else.

Your employer may communicate with your health care provider to get information required by the FMLA certification form.  Employers are prohibited from asking for information other than what is required by the certification form.  If the employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to you of what information is lacking and give you seven calendar days to cure the issue.

Your employer may require the certification to address your ability to perform the essential functions of your job. In the event that reasonable job safety concerns exist, an employer can require a fitness-for-duty certification before you may return to work when you take intermittent leave.

Your employer is not allowed to use your FMLA leave against you.  The employer cannot write you up for poor attendance, give you poor performance evaluations for excessive absenteeism or for failing to perform while you were on leave, demote you or fire you for taking leave.

Our New York Employment Lawyers handle FMLA and related cases from start to finish.  If you have any questions, please contact us.  All e-mails are answered by an attorney within 24 hours.

Family and Medical Leave in New York

Family and Medical Leave Act only applies to employers with fifty or more employees.  New York State and City laws are much more liberal – these laws apply to employers with only four or more employees.  All of these laws require that the employee have been employed by the employer for the past twelve months and worked at least 1,250 hours within the past twelve months.  If covered, the employee is entitled to twelve weeks of unpaid leave under the Family and Medical Leave Act for any of the following reasons:

  • serious health condition of a spouse, child or parent;
  • employee’s own serious health condition; or
  • birth, adoption or foster care of a child.

It is legal for an employer to require that employees use up vacation/personal/sick time as part of the 12 weeks of leave.  However, once the employee returns from leave, he or she must be returned to his or her prior position or an equivalent position.

If you have any questions about your right to medical leave under the Family and Medical Leave Act in New York or New Jersey, please contact us for a free initial consultation.