If you take leave from your job due to a disability, the last thing that you want to worry about is whether your job will be waiting for you when you return. Yet far too often, individuals who are out on disability leave find themselves in a precarious position when it comes to their employment. The question of whether being terminated while on medical leave is legal depends on a number of factors.
Most employees in the United States — including in Pennsylvania and New Jersey — are at-will, which means that they can be fired for any reason, provided that it is not illegal (such as firing someone on the basis of race). Figuring out when you have been fired for an unlawful reason, including because you have a disability or are recovering from an injury or illness, can be difficult. A Philadelphia employment law attorney can work with you to help you understand your rights.
What Laws Govern Disability Leave?
Both federal and state law allow eligible employees to take a certain amount of leave in a calendar year. Under the Family and Medical Leave Act (FMLA), covered employees can take up to twelve (12) weeks of leave in a twelve (12) month period for family and medical reasons. During this time, the employee’s job is protected and his or her group health benefits must be continued.
Not all employees are covered under FMLA. To qualify, an individual’s employer must have at least fifty (50) workers (who work within 75 miles of each other). In addition, an employee must have worked at least one year and 1,250 hours for their employer in the preceding year.
The New Jersey Family Leave Act provides similar job protections for workers in New Jersey; however, it does not allow an employee to take leave for his or her own medical condition or disability. An employee can take up to twelve (12) weeks of leave in a twenty-four (24) month period under this law. As with FMLA, both the employer and employees must meet certain qualifications for the Act to apply.
Pennsylvania does not have a separate law for employees that covers family or medical leave. Workers seeking to take disability leave in Pennsylvania may do so under FMLA.
Job Protection Under Federal and State Law
Under FMLA, an employer must be restored to the same job or an equivalent job upon returning from leave covered by the Act. Workers are not guaranteed the actual job that they had before taking leave. However, the job must be virtually identical in terms of pay, benefits, and other conditions of employment (such as location).
However, if an employee is considered a “key” worker, he or she may be denied restoration if doing so would result in “substantial and grievous economic injury to tits operations.” A key employee is one who is salaried, FMLA-eligible, and who is within the highest-paid 10% within a 75-mile radius. To deny restoration in this situation, an employer must provide notice and give the employee a reasonable opportunity to return to work.
Under the New Jersey Family Leave Act, an employee is entitled to return to the same position that they held before they took leave. However, if the original position is no longer available, then the company must offer an equivalent position (pay, benefits, and status). If there was a layoff while the employee was on leave, then the employee has the same rights as if he or she did not take leave.
What to Do If You Are Fired While on Disability Leave
If you are eligible for disability leave under FMLA, then you generally must give proper notice: either 30 days, or as soon as possible, following the employers’ usual procedures. While on FMLA-covered leave, you cannot be terminated. If your employer does fire you, then you may have a claim for wrongful termination.
What to Do If Your Leave Isn’t Covered By FMLA
Even if your leave is not covered by FMLA, or if your FMLA leave has expired, you may still have protections under the Americans with Disabilities Act (ADA). The ADA has broader coverage than FMLA, and requires all companies with fifteen (15) or more employees to comply with its regulations.
If you have a disability, you can request reasonable accommodations from your employer in order to return to work. Before firing you, your employer must engage in an interactive process and attempt to make reasonable accommodations that would allow you to do your job. If there is a reasonable accommodation that will not result in an undue hardship to the employer and will permit you to perform the essential functions of your job, your employer cannot terminate you. Both “reasonable accommodations” and “interactive process” are terms of art that may end up being part of any dispute you have.
In some cases, taking leave may be a reasonable accommodation for an employee with a disability. However, if an employer determines that holding open the job would be an undue hardship, they must consider alternatives that allow an employee to complete their leave before terminating their employment.
Each situation involving disability leave is unique. There are cases where an employer may fire a person who is on disability leave, such as for business necessity or performance necessity. An experienced employment lawyer can analyze your case and help you determine if you may have a claim against your employer.
Work with a Philadelphia Employment Law Attorney
If you were fired while on disability leave, you may have a claim for wrongful termination. An experienced Philadelphia employment law attorney can examine the facts of your case and determine if there is a basis for a claim under federal or state law.
Since 1995, Bross & Frankel has represented employees in a range of employment matters, including wrongful termination. We aggressively advocate for our clients, working hard to help them achieve justice. Contact our office today at (856) 795-8880 or online to learn more or to schedule a free claim review.
Rich Frankel is the managing partner of Bross & Frankel. He is a member of the New Jersey and Pennsylvania bars. He has focused exclusively on disability and social security benefits since 2005.
Mr. Frankel joined what is now Bross & Frankel after having watched his father struggle with disability, fighting a lengthy illness. Mr. Frankel founded the firm’s veteran’s law practice and substantially grew the social security disability practice, focusing Bross & Frankel’s ability to fight for all of the disability benefits available to his clients.
Mr. Frankel additionally fights for clients in court, obtaining frequent victories in Social Security appeals and against insurance companies in Federal court.