maternity 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. 

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.