Accommodations can include restructuring a person's job duties or schedule, installing Braille signage, modifying desks, making the workplace more wheelchair accessible, and many others. Even granting additional unpaid leave can be a reasonable accommodation.
Whether any of these accommodations constitute a hardship for the employer depends on many factors, including the size of the company and the cost of the changes. If there aren't any reasonable accommodations an employer can make that will allow a disabled employee to perform all the essential functions of the position, the worker may be legally terminated. Before terminating an employee on leave — or not allowing a worker to return to work after his or her leave — an employer has to determine whether there are accommodations that would allow the employee to do the job.
The employer must work with the employee to try several types of accommodations specific to his or her disability before deciding that the worker can't do the essential functions of the job. But remember, you may need to negotiate with your employer over the accommodations you'll need to keep your job, especially if the accommodations will be expensive for your employer or you work for a small company.
In practice, employers are often reluctant to fire employees who are on disability leave due to a fear of litigation. However, from the employer's point of view, it is often impractical or impossible to hold a disabled employee's job open for an extended period of time.
In these cases, the employer is left with little choice but to hire another employee to fill the vacant position. For more information on this topic, see Nolo's section on reasonable accommodations under the ADA. It can be confusing to figure out how the FMLA and the ADA apply to your particular situation, when you are on FMLA or other unpaid leave and receiving disability benefits but you want to return to work eventually. For example, can your employer argue that the fact you are collecting disability insurance benefits means you can't perform the essential functions of the job?
The definitions of disability used by the ADA and insurance companies and Social Security and workers' comp are all different, so collecting disability benefits from any of these sources doesn't necessarily mean you can't do the essential functions of the job and are not protected by the ADA.
That is why it is essential to consult with a knowledgeable attorney to determine if your firing constitutes wrongful termination. To sum up, your employer can fire you while on medical leave as long as the reason for the firing is not based solely on your medical condition and is not retaliation for taking a medical leave.
Each situation is different, which is why it is advisable to consult with a knowledgeable attorney to determine if you can sue your employer for wrongful termination for firing you while on medical leave. If you were fired while on medical leave, do not hesitate to speak with an attorney as soon as possible California imposes a time limit on wrongful termination claims.
Our lawyers at Obagi Law Group P. An employer can only terminate an employee if the termination is not related to the leave. Please see listed examples of when an employer is in its rights to terminate an employee while on leave: If the employee had already qualified for termination before the leave. If the employee was prone to being laid off or downsized and would have been terminated regardless of taking leave of absence.
There is no formal provision in the FMLA for extended leave beyond 12 weeks. However, it is possible for employees to negotiate an extension on a case-by-case basis by discussing their situation with their employer and requesting additional unpaid leave as a reasonable accommodation for a disability.
Generally, no. The law prohibits employers from firing an employee because of a disability or because the employee requires time away from work in connection with a serious health condition. The FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave. The same principles that apply for full FMLA leave apply also to the intermittent leave.
This means that you can not be terminated because you took intermittant FMLA leave. When the need for leave is foreseeable based on planned medical treatment, an employee must give at least days notice. Not necessarily. Unless otherwise agreed upon, all employees in New York are at-will employees, meaning that an employer can fire an employee at any time and for any reason, as long as it is not for a specifically enumerated illegal reason, such as due to a disability or for taking a protected medical leave of absence.
Yes, you may be eligible for unemployment benefits, but every case is different. Contact an unemployment lawyer to learn your options. Are you denied reinstatement when trying to return from medical leave? Do you feel that you were unlawfully terminated while being on medical or disability leave? Experienced employment lawyers at the Law Office of Yuriy Moshes are here to protect your rights.
As Seen On. Contact us for a free and confidential consultation. You have nothing to lose. All Rights Reserved. Privacy Notice. Author Yuriy Moshes, Esq. During his years of practice, Yuriy has concentrated in litigation and real estate transactions as his areas of expertise. Published, Jan. Updated, May. Your Name. Though Terry is on a medical leave, his employer can end his employment on the basis that his position has been eliminated.
This kind of restructuring is a perfectly legitimate and acceptable ground to terminate any employee, regardless of health status. Given his age, position and years of service, Terry would be owed approximately 12 to 14 months of compensation as an appropriate severance package. Another circumstance in which an employee on medical leave can be terminated is if that employee has committed serious, willful misconduct.
Human rights laws in Canada require employers to treat disabled employees the same as all other employees. A disability leave will not protect an employee who has been dishonest with their employer or who has knowingly engaged in the types of conduct which give rise to a termination for just cause.
It should be noted that terminations for cause are very difficult to establish and must be reserved for the worst kind of workplace misconduct.
A disability that is found to be temporary will not cause the employment contract to become frustrated. However, where the disability is found to be permanent, and the employee is no longer able to work in any capacity, frustration of contract may arise and the employer may be able to discharge the employee.
It does not necessarily matter how long the person has been away from work.
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