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Can You Be Terminated While on Medical Leave?

Founding Member of Moshes Law, P.C.
During his years of practice, Yuriy has concentrated in litigation and real estate transactions as his areas of expertise.

Can an employee be terminated while on medical leave? Can you be fired while collecting short-term disability benefits? Can you lose your job for being sick?

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    At the Law Office of Yuriy Moshes, P.C., our experienced attorneys can help you navigate complicated employment laws to figure out if you were unlawfully terminated.

    New York State employers must abide by the Family and Medical Leave Act (FMLA) and allow eligible employees to take unpaid leave for specific reasons. The FMLA protects employees from being terminated while on medical leave only for reasons related to the medical leave. New York employment laws allow an employer to terminate employment for any reason as long as it is not of discriminative nature such as an illness or disability. 

    During these current, uncertain times, you may have wondered if you can get fired for being sick or for having COVID-19. Beginning in March 2020, New York required most employers to provide their employees with separate paid sick time if the employee(s) are ordered to be quarantined due to COVID-19. This is now known as “quarantine leave”. This law has since been updated in January 2021 and employees still have quarantine leave if tested positive for COVID-19 or advised by a medical professional to isolate. Quarantine leave will not cause employees to lose any regular sick time they have acquired. Any employee who is out on COVID-19 leave is entitled to get their job back when they return to work. 

    An employer cannot terminate you for any reason related to being sick or being on leave due to COVID-19. If you have been terminated for such reasons, then your employer would have violated the FMLA and can run into serious legal issues.

    This article is to inform you of your rights as an employee while being on medical, sick or quarantine leave. If you feel your employment has been wrongfully terminated due to any of these leaves, our skillful attorneys can help you. Please read on for further information on current New York employment laws and how you are protected. 

    What Federal, State, and Local Employment Laws Govern Medical Leaves of Absence? 

    The federal laws that govern medical leaves of absence are the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”).

    can you get fired for being sick

    The New York Department of Labor is a local state law that governs medical leave of absence. If you are on medical leave, you have rights that are granted by the FMLA. In New York, you are permitted to have paid temporary leave. Please see below listed state and federal laws that protect the rights of employees on medical leave.

    Americans with Disabilities Act (ADA) 

    The ADA is a federal law forbids discrimination against individuals with disabilities in jobs and in all areas of public life. An employee who seeks medical leave due to a disability is protected by this Act. 

    The Family Medical Leave Act (FMLA)

    The FMLA is a federal law that allows authorized employees of covered employers to take unpaid, job-protected leave for qualified medical and family reasons. 

    The Pregnancy Discrimination Act (PDA) 

    The PDA is a federal law that protects employees’ rights if they are on pregnancy related leave or if their pregnancy inhibits their job performance for the time being. This Act covers any discrimination “on the basis of pregnancy, childbirth or related medical conditions.” 

    State Family Leave and Sick Leave Laws

    In 2021, New York updated their Paid Family Leave state laws for eligible employees to have access to 12 weeks of job-protected, paid time off to bond with a new child, care for an ill family member or assist loved ones when a family member is deployed on active military duty. 

    In April 2020, Governor Cuomo signed a law that secures employees’ job protection and financial compensation in the event that they or a dependent child are under quarantine order due to COVID-19. 

    Workers’ Compensation Laws

    New York qualified employees are protected by this state law in the case an employee is injured while on the job they will be fairly compensated. 

    Employer Paid-Time Off Policies

    In New York, PTO applies to full time employees who work at least 80 hours per calendar year. A PTO policy covers various types of leaves such as vacation, sick and personal. 

    Short-Term and Long-Term Disabilities 

    In New York, short-term disability covers 50% of an employee’s average wages for about 26 weeks. The claim for short-term disability must be filed within 30 days of the injury or diagnosis. If the condition lasts longer than 26 weeks, is terminal or if the applicant meets certain criteria then long-term disability benefits may apply. 

    For New York employees, the option to enroll in long-term disability must be made available by their employers. An employee on long-term disability can earn 66 and two-thirds percent of their regular earnings each month. 

    Can You be Fired For Being Sick?

    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.

    Can An Employee be Terminated While on Medical Leave Under the FMLA?

    It depends. An employee is eligible for FMLA leave if he or she has worked for the employer for at least 12 months and has worked at least 1,250 hours over the past 12 months. The FMLA applies to various employers including public agencies as well as any company that employs 50 or more employees within a 75-mile radius.

    The FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave each year for, amongst other reasons, the employee’s serious health condition that renders him/her unable to work. It also requires that qualifying employees’ group health benefits be maintained during the leave period. If an employee returns to work following FMLA leave, the employer is generally required to restore them to the same position the employee held before his/her leave commenced (or a nearly identical job with equivalent benefits, pay, and conditions). If an employee takes more leave than allowed under the law (12 weeks), the employee can legally be fired.

    employee on medical leave rights

    Although the FMLA is “job-protected,” you can nonetheless be terminated while on FMLA leave if the reason is not related to the leave. Thus, while it is possible to be terminated while out on FMLA leave, an employee cannot be terminated because of the FMLA leave or because of the underlying disability. For example, an employee can be fired while out on medical leave due to some other reason, such as a reorganization or for performance-related issues unrelated to the leave. The employer would have to show that the employee would have been terminated regardless of the medical leave.

    However, if the employee did not comply with the law and/or company policy about taking leave, such as not providing notice of leave (and instead simply not showing up to work), that behavior itself may provide a good basis for termination.

    Can a Disabled Employee be Terminated? What Does the ADA Say?

    The ADA makes it illegal to fire an employee simply because that employee is disabled. The ADA does not allow companies with 15 or more employees to discriminate on the basis of a disability or perceived disability. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities. The term also applies to any employee who is regarded by his or her employer as disabled, even if the employee does not actually fit the definition. The law applies to both full-time and part-time employees.

    The ADA requires that employers provide reasonable accommodations to disabled employees. An accommodation is an adjustment to the workplace that allows a disabled employee to perform his or her job. Courts have found that a short medical leave of absence can constitute a reasonable accommodation. Whether the leave of absence accommodation is reasonable, however, depends on the degree to which the leave of absence would disrupt the employer’s operation or result in unreasonable cost. Unfortunately, too often employers deny employees with disabilities their right to these accommodations.

    Fired After Short Term Disability?

    If you believe that your employer interfered with your rights by firing you while you were on medical leave, or if you have questions regarding your rights under the FMLA or ADA, you should speak to an employment law attorney. Call the Law Office of Yuriy Moshes for a free consultation right now.

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      Can You Be Terminated While on Short-Term Disability Leave or Long-Term Disability Leave?

      Short-term and long-term disability insurance policies are intended to offer income protection (cash benefits) to people who become unable to work for medical reasons. What surprises many disability recipients is that these policies offer little to no job protection. While it would not necessarily violate any short-term or long-term disability leave laws to terminate an employee while on disability leave, in many cases, the employee might still have claims for wrongful termination under the FMLA or ADA.

      Therefore, employees on disability leave can’t be fired if the leave also qualifies as protected leave under the FMLA or as a reasonable accommodation under the ADA. For example, if you attempt to return to your position after an approved FMLA leave and your employer informs you that your job duties have been delegated to other employees and your job is no longer available, you may have a claim under the FMLA for wrongful termination and unlawful interference with your FMLA rights.

      Health Insurance Coverage

      Many employees wonder what will happen to their health insurance coverage if they’re fired from their job. Fortunately, a federal law known as COBRA offers terminated employees the option to maintain health insurance coverage for a limited amount of time as long as they pay the full cost of coverage. COBRA insurance is often expensive, but it is frequently the only viable option for a recently terminated employee. Note that COBRA applies only to employers with 20 or more workers.

      What Should You Do if You Were Terminated While On FMLA Leave or While Taking a Leave of Absence As a Reasonable Accommodation Under the ADA?

      Try to recall all communications between you and your employer both prior to you going out on leave and while you were out on leave. Did your employer ever mention to you that there were issues with your leave of absence or that it was causing the employer an undue burden or hardship?

      If your supervisor or employer says that the reason for termination was actually the fact that you were on leave or disabled, you should document this and complain about it in writing.

      The unlawful termination of an employee on medical or disability leave is one of the most complex areas of employment law. In order to increase your chances for recovery, you should get an experienced employment attorney by your side and contact the Law Office of Yuriy Moshes, P.C.

      You will probably need help proving that you were not fired due to performance issues or business necessity, and your attorney will ensure you follow the correct procedures for filing a complaint with the Equal Employment Opportunity Commission (EEOC) and then filing a lawsuit, if necessary. Contact an employment lawyer immediately so he or she can start filing the complaint as this procedure can take time; it is best to act right away. 

      If you have been terminated and wonder if a company can fire you for being sick, the answer is no. With the defense of the employment laws both federal and state, an employer cannot fire you for the reason of having an illness or being sick. Please contact us if you think you were wrongfully terminated and if any employment laws were violated. 

      FAQs

      When Can an Employer Terminate Someone on FMLA Leave?

      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.

      Can you be terminated while on short term disability?

      Yes, short-term disability policies do not offer job protection.

      Can FMLA be extended beyond 12 weeks?

      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.

      Can I be fired because of a medical condition?

      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.

      How long does an employer have to hold your job open while on FMLA leave?

      The FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave. If an employee returns to work within those 12 weeks, the employer is generally required to restore the employee to the same position the employee held before his/her leave commenced (or a nearly identical job with equivalent benefits, pay, and conditions). If an employee takes more leave than allowed under the law (12 weeks), the employee can legally be fired.

      Can you be fired while on intermittent FMLA 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.

      How much notice must an employee give before taking FMLA leave?

      When the need for leave is foreseeable based on planned medical treatment, an employee must give at least 30-days notice. If 30-days notice is not possible, an employee is required to provide notice “as soon as practicable.”

      Can FMLA be applied retroactively?

      Yes, an employee and employer may agree to retroactively designate an absence as FMLA-protected.

      Can I sue my employer if I’m fired for being sick?

      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.

      Can I collect unemployment if terminated while on disability?

      Yes, you may be eligible for unemployment benefits, but every case is different. Contact an unemployment lawyer to learn your options.

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      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. We work in the greater New York City area including all of the boroughs of New York City (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, upstate New York, and Long Island.

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