The laws covering whether you can be fired while you're off work recovering from a physical or mental illness or injury are complicated. First, whether your job is protected depends on whether you're:
Second, you can always be laid off due to business necessity or be fired for performance issues that don't have to do with your disability.
Third, there are some situations in which you can legally be fired even though you're on disability leave, as long as your employer follows the rules under the Americans with Disabilities Act (ADA).
If you're covered by the Family and Medical Leave Act (FMLA), you can take up to 12 weeks of unpaid leave to deal with a physical or mental medical problem (or to take care of a family member's medical issues).
Unfortunately, the FMLA doesn't apply to most employees who work for small businesses—the law applies only to employees who work at companies with at least 50 workers (who work within 75 miles of each other). Also, employees can take FMLA leave only if they have worked at least a year for an employer and worked at least 1,250 hours for that employer in the past year.
Assuming you're eligible for FMLA leave and you correctly requested it, you can't be fired while on FMLA leave. And when you return from FMLA leave, your employer must give you back your position, or one that is nearly the same—assuming you can still do the job.
Most states have their own laws regarding unpaid leave for medical reasons, and most of these laws provide protections that are similar to the protections the FMLA provides. In most states, you can't be fired while on paid or unpaid leave covered by state law.
Some state leave laws are even more generous than the FMLA. For instance, the California Family Rights Act (CFRA) protects your job and requires your employer to continue all group benefits while you're out on leave. Check with your state's Department of Labor or an employment law attorney for information on your state's leave policies, especially if you aren't covered by the FMLA.
If you're collecting short-term disability (STD) or long-term disability (LTD) insurance benefits, it's probably through your employer's ERISA-based insurance policies. These short-term and long-term disability insurance policies pay you cash benefits when you're off work due to a disability, but they offer no protection for your job.
To be protected while you collect short- or long-term disability benefits, you need to rely on a medical leave law, like the FMLA (discussed above) or a disability discrimination law, like the ADA (discussed below). For more information, see our article on job terminations while on short-term disability or long-term disability.
Your employer can't fire you for:
Your employer has to keep you on at least until your temporary disability benefits stop—that is, until you fully recover from your injury or recover as much as you're going to. To learn more, read our article on job protections while collecting workers' comp.
Even after you've exhausted your 12 weeks of FMLA leave per year, or if you're not eligible for FMLA leave, the Americans with Disabilities Act (ADA) can make it difficult for your employer to fire you when you're out on disability leave. Fortunately, the ADA covers more small businesses than the FMLA—businesses with just 15 or more workers have to follow the ADA rules.
Employers covered by ADA must first try to work with you if they want to fire you for not being able to do the job.
Before firing you while you're on disability leave—or not reinstating you to your position after your disability leave ends—your employer has to try to "accommodate" you; that is, make the job suitable for you, given your impairments. Examples of ways an employer could accommodate your disability include:
To protect yourself, if your employer wants you to return to work, it's best to request accommodations from your employer in writing.
Your employer must work interactively with you to try to come up with accommodations that would allow you to do your job. During discussions with your employer, you might need to compromise on the accommodations you asked for. Your employer only has to make accommodations that are reasonable and that won't cause the company "undue hardship." What constitutes undue hardship is based on the cost of the accommodations to your employer and the size of the company.
If your employer has set up accommodations that would allow you to return to work, but you don't return, you can be fired.
Or, if you and your employer can't figure out any accommodations that are reasonable and that allow you to do the "essential functions" of your job, your employer can fire you. The essential functions of a job are the basic duties of a position—tasks a person holding the job has to be able to do.
In other words, despite the best efforts of your employer to accommodate you, if you still can't do the job, you can be fired. Read more about the accommodations process in the workplace.
You can request unpaid leave as an accommodation for your disability, but keep in mind that it has to be reasonable and not cause undue hardship to the company.
Generally, your employer has to allow you to take unpaid leave if you're expected to return in a reasonable amount of time and to be able to do the job when you return (with further accommodations, if necessary). For instance, your employer may be able to claim undue hardship if:
Here's a good rule of thumb: If the cost or other consequences of allowing you to take additional leave (while saving your position for you) threatens the company's financial stability, your employer will probably be allowed to fire you. For further discussion on this, see Nolo's article on getting time off work as a reasonable accommodation.
If you were let go while on disability leave—FMLA or not—speak to a disability or employment lawyer. You may have a claim for wrongful termination against your employer under the FMLA or ADA. Before you sue your employer, you'll need to file a complaint with the Equal Employment Opportunity Commission (EEOC).
If you're considering suing your employer for wrongful termination, consider talking to an experienced employment lawyer. A lawyer can help you negotiate with your employer or file an administrative complaint with the EEOC.
Updated May 3, 2022