employment leave

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. 

New York Pregnancy Leave - What Are Employees Entitled To?

In New York, pregnancy leave is not guaranteed by law.  Accordingly, there is no obligation for an employer to provide its employees with any amount of leave for pregnancy. In other words, there is no provision for New York Pregnancy Leave.  Unless the company has a policy of providing such leave, they are not required to do so by law.

Nevertheless, many employees are entitled to request up to 12 weeks of unpaid leave per year to care for a newborn child pursuant to the Family and Medical Leave Act.  For more information about such family or medical leave , please click on one of the articles below. A woman may also be entitled to disability benefits for the period of time that her doctor certifies that she is unable to work, up to 26 weeks. NY Work Comp Law sec. 201(9)(B).   

For more information:

Famly and Medical Leave in New York

FMLA Notice Requirements

If you have any additional questions about New York pregnancy leave, please contact us for a free consultation.  Our experienced lawyers have many years helping pregnant families navigate through the often confusing waters of requesting - and taking - pregnancy leave.

 

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

Do I Need An Employment Lawyer?

Do I need an employment lawyer? Our experienced New York Employment Lawyers get calls all the time for people who are not sure whether they need an employment lawyer. You cannot bring an action just because you think it was “unfair” to terminate your employment.  There is no such thing as “unlawful termination,” or “wrongful termination.”  Unless you have an employment contract, there is really no such thing as wrongful termination.  So how do you decide whether or not to contact an employment lawyer?

Why …

There are times during the course of your employment when you may need an attorney. For example:

Deadlines: Employment laws are a morass of confusing deadlines and procedural requirements.  If you do it yourself, you might miss something and lose your claim.

Confusing claims: There are some employment laws that you might not know about and there are some laws you think exist, that may not.

Being taken seriously: Some employers will not take you seriously unless you have representation.

Confrontation and advocacy: Some people do not want to find themselves in a confrontational situation or advocating for themselves. Sometimes it’s better to have someone else advocate for you.  Attorneys are trained advocates.

When …

You should contact a lawyer immediately if:

Your current or former employer sues or threatens to sue you;

You are being asked to sign an something that you don’t fully understand, like an employment agreement, non-compete, confidentiality clause, or arbitration agreement;

You have been retaliated against for complaining about discrimination or something illegal the employer has done;

You are not being paid all the wages you’re owed (including time and a half for overtime);

You are misclassified as exempt from overtime or as an independent contractor;

You believe that you have been a victim of discrimination based upon your race, sex, religion, ethnicity, disability, age, pregnancy, national origin, color, genetic information, objecting to discrimination, or request for medical leave to care for yourself or a family member.

Do I have a case?

That’s the million dollar question, isn’t it?  The devil is in the details, but the following checklist should be a good place to start:

Cases involving termination, demotion, or suspension without pay

If you answer “yes” to any of these questions, you may have a claim. Definitely contact us if any of these occurred shortly before you were terminated, demoted, suspended, or otherwise disciplined:

●          You made a worker’s compensation claim shortly before being fired.

●          You recently objected to, refused to participate in, or reported illegal activity or discrimination by the company

●          You recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy.

●          Your employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer.

●          You recently performed jury duty.

●          You recently served in the military.

●          You recently took family or medical leave.

●          You recently served as a witness in a lawsuit or provided testimony or evidence to EEOC.

●          You recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment.

●          Your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week.  Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It is not illegal to discriminate against you for being you. Your boss does not have to like you.  He/she does not have to be nice to you.  However, if the discrimination or harassment fits into one of the categories below, you should contact us to find out more about your rights and your responsibility to report it before you make a claim.

● Race ● Sex ● Sexual harassment ● Religion ● Ethnicity ● Disability ● Age ● Pregnancy ● National origin ● Color ● Genetic information ● Retaliation for objecting to discrimination

If you feel that you have been treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color you should contact us.

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 Act

If covered by the Family and Medical Leave Act (FMLA), an employee is entitled to twelve weeks of unpaid leave 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.

To be eligible for the FMLA, the employer must employ at least fifty (50) people, and the employee must have been employed by the employer for the past twelve months and worked at least 1,250 hours within the past twelve months. 

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.

It is illegal for your employer to interfere with your right to take FMLA leave, to force you to work during your leave, or to retaliate against you for taking FMLA leave.

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

​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.

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.

Am I Entitled to FMLA Leave?

The Family and Medical Leave Act (FMLA) is a federal law that requires certain employers to provide to eligible employees up to 12 weeks of unpaid leave per year and to maintain the employee’s health benefits during the leave. FMLA applies to all employers with 50 or more employees.  Such employers must provide a FMLA eligible employee with up to 12 weeks of unpaid leave each year for:

    • the birth of a child and the care of the newborn child within one year of birth;
    • the placement with the employee of a child for adoption or foster care and the care of the newly placed child within one year of placement;
    • the care of the employee’s spouse, child, or parent who has a serious health condition;
    • a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
    • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty”

Under the FMLA, employers must also provide 26 workweeks of leave during a single 12-month period for the care of a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

An employee is only eligible for FMLA leave if they have worked for their employer at least 12 months and at least 1,250 hours over the past 12 months.

For more information, see:  http://www.dol.gov/whd/fmla/.

Employers often interfere with an employee’s right to take leave or retaliate against the employee for taking leave. If you feel that you are not getting the leave you are entitled to under the FMLA, please contact a FMLA attorney at our firm for a free initial consultation