NY FMLA Lawyers

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. 

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 a NYC employment lawyer do for you?

A lot, actually. A good NYC employment lawyer can help you in a lot of ways you might not be aware of. This article lays out some of the ways that the NYC employment lawyers at our firm can assist you. While this article focuses primarily on NYC Employment Lawyers, it is just as applicable to employment lawyers outside of New York City – it just so happens that we work here.

  • A NYC Employment Lawyer can work with you behind the scenes.

One of the most common misconceptions about employment attorneys – in fact about nearly all attorneys – is that as soon as you’ve hired an attorney, you are going to court. Nothing can be further from the truth. A good employment attorney will start out by working with you behind the scenes to help guide your actions. This is especially useful when you are still employed, but having issues at work (e.g. harassment).

  • A NYC Employment Lawyer can help you get severance.

If your employment has been terminated, an employment attorney can help you get a severance. Contrary to popular belief, most employees are not entitled to severance. In reality, when employees get what they call a “severance agreement,” what they are really getting is a “severance agreement and release.” In exchange for some money (severance) from the company, the employee agrees not to sue (release). An employment attorney can find the leverage points to get severance. For more information on severance, you can look at our other articles. We do a lot of severance work here.

  • If you have already been offered severance, a NYC Employment Lawyer can help you get more severance.

The only thing better than severance, is more severance. You don’t necessarily have to take the employer’s first offer. If you are over 40, the law requires at least 21 days to consider any offer of severance. Use this time to contact an employment lawyer. A good one will help you turn some severance into more severance.

  • A NYC Employment Lawyer can negotiate with your employer

Often, our firm negotiates directly with the employer to get a better severance for our clients.  If you have been offered a severance, consider contacting an employment attorney for help.

  •  A NYC Employment Lawyer can file a lawsuit against your employer.

We put this one last for a reason.  Lawyers are probably best known for filing lawsuits, but most lawyers provide services so that their clients can avoid litigation altogether.  However, if you are interested in filing a lawsuit against your employer, take a look at our practice areas, these might give you an idea of the sorts of issues that employment lawyers can help you with.

If you need more information or a free consultation, feel free to contact us.  We would be happy to help.


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.

​NY FMLA Lawyers

NY FMLA Lawyers
NY FMLA Lawyers

You may be entitled to leave Under the FMLA because of a serious illness or to take care of a loved one.  Our NY FMLA Lawyers handle sick and personal leave and a host of other leave-related issues.  The FMLA protects employees, amongst other things, from being denied medical leave or from being retaliated against for taking leave. Let our NY FMLA Lawyers help you to understand your rights and protect yourself. If you believe that you were denied FMLA leave, or were retaliated against for taking FMLA leave, please contact one of our FMLA lawyers for a free initial consultation. Our NY FMLA Lawyers can help.