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Can an Employee be Fired While on Disability?

meetingroomAs everyone knows, there are times during employment where a employee has to go on disability leave. One of the top questions that employees on disability ask is, can an employee can be fired while on disability?  While you are receiving disability benefits, you may wonder if you are immune to be fired. An employer may be able to fire you during your disability, but depending on the circumstances, you may have a claim for wrongful termination. This is a gray area in the law, and if you have questions about whether a workplace can fire you while you’re on disability or because you’re on disability, read on for some tips.

Different Types of Disability Leave

there are a variety of different types of disability leave. For example, you could be on short-term leave prescribed by your doctor, meaning that you need a certain amount of time off for particular medical condition. You could also be on disability leave due to a workplace injury, often through the workers compensation process. On the other hand, you could be taking leave based on the provisions of FMLA (Family and Medical Leave Act) or the California Family Rights Act (CFRA) which is the equivalent of the federal law.  There is also Pregnancy Disability Leave (PDL) in the California, which allows a woman who is pregnant to take up to four months of unpaid disability leave before after childbirth. PDL is available in addition to CFRA or FMLA leave.

California Family Rights Act

The California Family Writes Act allows California employees who are employed by employers doing business in California to be eligible for leave to take care of an ill parent, spouse, or child, or the employees own serious health condition, or to bond with a baby. The leave can be up to 12 weeks in a 12 month period, it applies to employers who employ at least 50 full-time or part-time employees. To be eligible, the employee has to have worked more than 12 months with the employer and for at least 1250 hours in the 12 month period before the leave begins.

Federal and Medical Leave Act

There is laso a federal law called the Family and Medical Leave Act (FMLA) that protects employees under certain circumstances from being fired while on disability. If all criteria isn’t met, then you may not be protected from being fired while on disability. The FMLA only applies to companies that employ 50 or more employees and they must be within 75 miles from each other. So, if your company is smaller or if the employees total meet the minimum but are in two different offices across on opposite sides of the country, this law is not going to protect you.You also must have worked at your present company for at least one year total before the FMLA applies to you. You may have worked there 6 months, took some time away and returned for another 6 months, but in total, you must have worked there for at least one year to enjoy the FMLA protections. Also, you must have worked at least 1,250 hours in the previous year. Although the FMLA does not itself provide paid time off, you can receive disability during that time, but the FMLA only can apply if you take 12 weeks or less time off, even though your benefits could last longer than this.So long as the above requirements are met, your employer cannot fire you during this period of time on FMLA leave.

Americans with Disabilities Act

There is another federal law called the Americans with Disabilities Act (ADA) that protects people with disabilities from being fired due to their condition. Like the FMLA, there are some requirements before it can protect you from being fired.The employer must have at least 15 or more employees. An employer under the ADA, employees must make “reasonable accommodations” for employees with disabilities so long as it does not cause them undue hardship. The employer can make adjustments to schedules, workspaces, and accessibility but if they cannot provide the reasonable accommodations so that you can perform all your essential functions of your position, then your employer can legally fire you.

Can an Employee be Fired While on Disability?

The answer to this question is in a gray area. Generally, an employer can fire an employee for any reason. They do not even have to have a reason for the termination. This is the concept of being “at-will,” which is the majority law in California and almost every other state. The employer can hire, fire, demote, promote, and let the employee go at its discretion, for no reason at all.

The tricky part is whether the termination is being done for an unlawful reason. If an employer terminates an employee specifically because the employee is on disability leave, that can constitute wrongful termination.  The question of whether an employee is being terminated specifically for having a medical condition, or taking disability leave, or needing special assistance because of a medical condition or disability is a fact by fact inquiry that is evaluated on a case-by-case basis. It can be difficult to tell whether the actions the employer is taking are unlawful or not. Here are some examples of terminations that would not necessarily be unlawful:

  • An employee who has returned from disability leave is let go because their leave time has expired and  they never returned to work
  • An employee on disability leave is let go because the company has gone bankrupt in the meantime and can no longer afford any employees
  • An employee on disability leave is demoted or let go while on disability leave for violating company policy while on leave

On the other hand,  here are some examples of terminations or employer actions that may very well be unlawful:

  • After returning from disability leave, the employer rearranges the employees schedule to add tremendous amounts of work to try to get the employee to quit
  • While on disability leave, the employer harasses the employee, constantly bothering the employee to try to make it as unpleasant as possible for the employee to return
  • After returning from disability leave, the employer reassigns the employee to a boss or supervisor that is a bad reputation and known for getting people to quit
  • After returning from disability leave, the employer tells the employee that their performance is terrible and that if they do not shape up, they will be fired; and then within a few weeks, the employer fires the employee
  • When the employee asks for leave, the employer makes a series of inappropriate comments questioning whether the leave is legitimate
  • When the employee asks for leave, the employer takes an unlawful action, such as contacting the employee’s doctors or physicians independently to try to figure out whether the employees reasons for wanting to go on leave or legitimate

As you can see, there are a number of times when an employee being fired while on disability could be unlawful, or lawful. We suggest that if this is happened to you, you contact an attorney to walk through the facts of your case with you and determine whether something unlawful has happened. Some employers can take advantage of employees and trample over their rights. The best way for you to protect yourself is to get a consultation with an attorney experienced in employment matters to discuss the facts of your case with you and tell you whether the matter is worth pursuing further.

readreviewssgAXIS Legal Counsel is an employment law firm representing clients in numerous kinds of lawsuits and disputes involving some of the nation’s largest employers. Whether it is sexual harassment, other kinds of harassment, discrimination, race discrimination, pregnancy discrimination, medical/disability discrimination, racial harassment, retaliation, hostile work environment, wage/hour, workplace bullying, or other claims, AXIS Legal Counsel is experienced in the field of employment and labor law and focused on providing high-quality legal service.

For information on retaining AXIS Legal Counsel to represent you or a loved one with an employee rights’ claim, contact [email protected] or call (213) 403-0130 for a confidential consultation, or visit our Employee Rights Practice or Individual Rights portal. AXIS is a Los Angeles, California law firm that provides victims of labor and employment law violations with aggressive representation to pursue the maximum extent of their rights.


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