Can My Employer Fire Me While On Disability?

There are federal and California lawyers that protect employers from discrimination in hiring, firing, and job opportunities for disabled employees. These laws include the federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (CFEHA).

Can an employee be fired while on disability leave?

Some employees need to take time off from work because of a physical or mental disability. Generally, employees in California are also protected by the CFEHA from losing their job if an employee is on temporary leave due to a disability. (The ADA offers similar protections). If certain conditions are met, an employer in California cannot be fired during this leave of absence. These conditions include the following:

• The CFEHA applies to employers who have five or more employees – if there is a discrimination claim based on the employee’s disability. The qualifying number is just one – if the claim is a harassment claim. The ADA applies to employers who have 15 or more employees.
• The employer must provide the employee with reasonable workplace conditions (reasonable accommodations) if the employee wants to work through his/her disability. Reasonable accommodations include flexible work schedules and making your workspace more ergonomic or friendly so you can do your job. Generally, you should review what accommodations you need to do your job. Reasonable accommodations are accommodations that don’t cause any undue hardship to your employer.
• The employee’s condition must qualify as a “disability.” The CFEHA’s definition of disability is broader (includes more types of medical conditions) than the ADA’s definition. A disability generally includes a major life activity limitation.  The CFEHA includes disabilities that are less severe and some disabilities that are temporary or can be corrected with treatment and time.

Our seasoned employment lawyers understand when the laws apply, what your remedies are, and what damages you can claim. We also anticipate and work to counter common employer arguments such as that the firing or adverse workplace conditions were due to performance issues or other non-disability issues.

The Family and Medical Leave Acts – and time off for a disability

There are federal and California family and medical leave acts (FLMAs) that employees may be able to use to take time off from work if they have a disability.

Both the federal government and California have family leave laws. While these laws are often used to help a spouse, parent, or child; employees have the right to use these laws on their own behalf. The federal and California Family and Medical Leave Acts both specifically provide that an employee can take up to 12 weeks off in a 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her job.

The leave is unpaid. The employee should be able to return to the same job or a comparable one on his/her return to work. The employee should keep his/her right to medical coverage if provided by the employer during the leave and keep his/her seniority status during this period.

The federal and California FMLA laws apply to larger companies – companies with at least 50 workers who work within 75 miles of each other. Both laws also require that the employee has worked for the employer for at least one full year or 1,250 hours prior to requesting the leave.

What other factors affect adverse actions by your employer – if you take time to treat a disability?

Whether your job is protected from termination by your employer depends on many other factors besides the size of the employer and your medical condition including the following:

• Alternative disability benefits. Whether the employee is receiving any workers’ compensation temporary disability benefits – or any other paid or unpaid leave. Generally, employers cannot fire a worker who applies for or is receiving workers’ compensation benefits.
• Whether the employee is receiving any short-term or long-term benefits

Workers who do have a long-term disability, one that prevents them from working for 12 months or more, may be eligible for Social Security Disability Insurance (SSDI) benefits. These payments provide a source of income but they don’t generally protect the employee’s job.

If your job is critical to the company’s success, your employer may be able to terminate you and hire someone with similar skills – provided you aren’t protected by a family and medical leave act or other laws.

What are your remedies for wrongful termination due to a disability leave?

Our employment lawyers will normally file a complaint with the Employment Opportunity Commission (EEOC) or the California Department of Fair Housing and Employment (CDFHE). If your complaint cannot be resolved, we file lawsuits in federal and state courts for disability discrimination or for non-compliance with the appropriate family and medical leave act.

If an employer has fired you or adversely affected your ability to do your job because of a disability, call the Miracle Mile Law Group today. You can call us at (888) 244-0706 or contact us to schedule a FREE consultation.