What Should I Do If I Become Disabled And Get Fired As A Result?November 20, 2018
Federal Law in the United States offers several protections for disabled employees in the workplace. There are strict laws in place which prevent an employer from discriminating against their employees on the basis of that employees disability. These discrimination laws apply to every facet of employment including hiring, firing, promotions, job placement, pay or any other condition. For example, if an employee is not offered a promotion because they have some sort of disability, it is considered disability discrimination and the employee can potentially sue.
The laws governing employment discrimination can be found in several federal laws including the Federal Family and Medical Leave Act (FMLA) (https://www.eeoc.gov/laws/types/disability.cfm ), the American with Disabilities Act (ADA), and the Rehabilitation Act. Individual state laws, such as those in California, also provide extra protections for employees in California.
Americans with Disabilities Act
Not every medical condition is considered a disability under the law. This means that not every medical condition will provide an employee with the protection of the ADA. (https://www.whitehouse.gov/sites/default/files/docs/employing_people_with_disabilities_toolkit_february_3_2015_v4.pdf).It is also important to note that the ADA does not apply to all employers. It only applies to employers with 15 or more employees, employment agencies and labor organizations. For an employee to receive protection under the ADA, the employee must:
- Be qualified for the job or able to perform the functions of the job
- Have a disability as defined by statute.
Furthermore, according to the ADA, someone is disabled if the meet the following criteria.
- He/she has a physical or mental condition that substantially limits a major life activity such as talking, walking, hearing, seeing, learning or vital bodily functions such as the cardiovascular system, immune system and normal cell growth.
- He/she has a history of mental or physical conditions or impairments such as cancer
- He/she has a mental or physical condition that is not transitory or minor.
Employees fired because of disability: How the ADA protects employees
The ADA provides several protections from employees with disabilities, but these protections do not come without the employee being proactive. The burden is on the employee to inform the employer of their disabilities. (http://www.nolo.com/legal-encyclopedia/can-you-be-fired-from-job-while-leave-with-disability.html ). This gives the employer the opportunity to take action and provide appropriate accommodations.
The ADA places requirements on employers to make a concerted effort to provide an employee with reasonable accommodations . An accommodation in the work place is when an employer changes the work environment in any way to assist an employee with their disability. An accommodation can be anything from implementing a wheelchair entrance, adjusting an employees job duties or providing an employee with a specific chair.
Employers must make some effort to provide accommodations to employees with disabilities unless providing the accommodation would cause undue hardship to the employer. Undue hardship arises in situations when a specific accommodation is too expensive or burdensome to provide. If an employee cannot perform his or her job duties after an employer makes all reasonable accommodations, then that employee can be legally terminated.
Employees fired while on leave: How the FMLA protects employees
The FMLA is a federal law that governs the rights of employees who take leave. Similar to the ADA, the FMLA only applies to employers with over 50 employees who are located within 75 miles of each other. Furthermore, employees are only eligible for leave when they have for their employer for at least a year and provided at least 1,250 work hours in the preceding year.
The FMLA provides employees with 12 weeks of unpaid leave per year. Furthermore, the FMLA make it illegal for employers to terminate employees who are on leave.
If an employee is fired because of their disability while they are under their employers health insurance the employee can keep that coverage for a specified period of time as defined by the Federal Omnibus Budget Reconciliation Act (COBRA). The purpose of this law is protect employees from being without insurance under the circumstances of an unexpected termination. COBRA only applies to employers with 20 or more employees and requires that the employee cover the cost of the health insurance plan that they were under.
If an employee feels that they have been wrongfully treated by their employer due to their disability or leave then they should consult with an attorney who is experienced in labor law immediately. The laws governing disability and leave are complex. There are strict regulations governing the process for filing a lawsuit. Furthermore, there are strict time restrictions, known as statute of limitations, as to when a lawsuit can be filed. The experienced attorneys at Shegerian Conniff are ready to hold your employer accountable, fight for your legal rights, and seek justice. Click here to contact us today or call us at 310-322-7500 for a free consultation.