While you are off work, receiving short- or long-term disability insurance benefits does not preclude your employer from terminating your employment.
Disability insurance, both short-term and long-term, is designed to provide income protection (cash payments) to persons who are unable to work due to medical reasons. Many disability recipients are surprised to learn that these insurance provide little to no work protection.In many cases, it is permissible for an employer to fire an employee who is receiving disability payments, yet there are some circumstances in which a worker may have legal grounds to launch a wrongful termination complaint.
Job Protection Under the Family and Medical Leave Act (FMLA)
Under the Family and Medical Leave Act (FMLA), employees are entitled to twelve weeks of unpaid leave each year to deal with their own medical concerns or care for a sick member of their immediate family. The FMLA does not apply to all businesses, and even in those that do, employees must meet certain requirements in order to be covered by the law. FMLA is only available to employers with 50 or more employees who work within 75 miles of each other, and employees must have worked:
Despite the fact that FMLA leave is unpaid, an employee may be eligible for short-term or long-term disability payments while on leave. Many employers, in fact, require you to use your FMLA leave while you're on disability. FMLA is the most significant form of work security for many disabled employees.
If you're on FMLA leave, your employer can't fire you as long as you don't take more than 12 weeks every year. When you return from FMLA absence, your employer must rehire you in the same or a substantially comparable job. If you take more than 12 weeks of FMLA, even by a single day, you risk losing your job due to excessive absences. Of course, if you're fired while receiving disability payments, your benefits will continue to be paid out according to your policy's terms.
Finally, keep in mind that the Family and Medical Leave Act (FMLA) is a federal statute, and certain states may have more favorable regulations regarding unpaid medical leave. To find out the rules in your area, contact your state's Department of Labor or an employment law practitioner.
How the Americans with Disabilities Act (ADA) Can Protect Your Job
Although most employees in the United States work "at-will," meaning they can be fired for almost any reason, the Americans with Disabilities Act (ADA) makes it illegal to fire an employee because of a handicap. This statute protects persons who meet the ADA's definition of disability, which includes many people on disability leave as well as those who have previously received benefits and then returned to work.
Disability is defined as "a physical or mental impairment that substantially hinders a major living activity" under the Americans with Disabilities Act. Employers who are covered by the ADA (those with 15 or more employees) must make reasonable accommodations for your impairment if it does not cause them "undue hardship". However, it is the employee's responsibility to inform their boss of their impairment so that accommodations can be made.
Reorganizing a person's job responsibilities or schedule, putting Braille signage, changing desks, and making the workplace more wheelchair accessible are just a few examples of accommodations. Even offering more unpaid time off can be a sensible compromise. Whether or not any of these modifications are a hardship for the employer is determined by a variety of variables, including the company's size and the expense of the changes. If an employer cannot make reasonable accommodations to allow a disabled employee to perform all of the essential responsibilities of the job, the employee may be legally terminated.
An employer must evaluate whether there are adjustments that would allow an employee on leave to perform the job before firing the employee or refusing to allow the employee to return to work after his or her leave. Before finding that the employee cannot perform the essential functions of the job, the employer must engage with the employee to explore a variety of adjustments tailored to his or her handicap. However, bear in mind that you may need to negotiate with your employer about the adjustments you'll need to maintain your employment, especially if the accommodations are costly for your employer or you work for a small business.
Employers are generally hesitant to terminate employees who are on disability leave because they are afraid of being sued. However, from the employer's perspective, keeping a handicapped employee's position open for a lengthy period of time is typically difficult or impossible. In certain situations, the employer has no choice except to hire another employee to fill the vacancy.
How FMLA and the ADA Work Together
When you are on FMLA or other unpaid leave and receiving disability payments but wish to return to work, it might be difficult to figure out how the FMLA and the ADA relate to your specific circumstances. Can your employer, for example, argue that you are unable to execute the core tasks of your work because you are receiving disability insurance benefits? No. Because the ADA and insurance companies (as well as Social Security and workers' compensation) use different definitions of disability, receiving disability benefits from any of these sources does not necessarily mean you can't perform the essential functions of your job and aren't protected by the ADA.
This overview may assist you in applying the FMLA and ADA laws to your specific circumstances.
Examples of When Employees Can't Be Fired
Employees on disability leave can't be fired if:
Examples of When Employees Can Be Legally Fired
Employees on disability leave can be fired if:
Health Insurance Coverage
Many employees are concerned about what will happen to their health insurance coverage if they are laid off. Fortunately, COBRA, a federal statute, allows dismissed employees to keep their health insurance coverage for a limited period of time if they pay the entire cost of coverage. COBRA insurance is typically expensive, yet it is sometimes the only choice available to a newly fired employee. COBRA only applies to companies with 20 or more employees.
If things don't go your way after your leave expires and your company doesn't reinstate you, read our article on wrongful termination and consider hiring an employment lawyer. You'll almost certainly need assistance showing that you weren't dismissed due to poor performance or a business necessity, and an attorney will make sure you follow the proper processes for filing a complaint with the Equal Employment Opportunity Commission (EEOC) and, if necessary, a lawsuit.
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Yoel “Mo” Molina, I am a lifelong resident of Miami, Fl. I am a graduate of Miami Senior High, Class of 1992, Georgia Institute of Technology, B.S. 1997 and University of Maine School of Law, J.D. 2001. I have been practicing law in Miami Since 2001. I am a former training prosecutor in the Miami-Dade State Attorney’s Office. I have experience in jury trials, appeals, and administrative hearings. I have appeared before judges across the State. My experience ranges from civil litigation matters, collection matters, foreclosure, business and corporate, contracts, real estate, leases and employment matters..
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