Can I Sue For Wrongful Termination If Was Fired While on Disability?

Employees have certain legal protections that limit what their employers can do while they are on disability leave. Generally, you can’t be fired simply for exercising your right to medical leave, but that doesn’t guarantee that you won’t be fired for reasons unrelated to your disability. If your employer fired you during a round of layoffs that would have occurred regardless of whether you were on disability leave, for example, that might not be considered a “wrongful termination.”

Wrongful termination happens when your employer fires you in a way that conflicts with local, state, or federal laws. So if you were fired while you were out on leave or because you received disability benefits—and you think that your disability is the reason why you were fired— it’s important to learn what your legal options are so you can best plan your next steps.

Can You Be Fired While on Disability?

Whether or not you can be legally fired while on disability depends on several factors:

• if you’re taking time off under federal or state family and medical leave laws
• if you’re taking other paid or unpaid leave
• if you’re collecting workers’ compensation temporary disability benefits
• if you’re collecting short-term or long-term disability insurance benefits, and
• if your employer followed proper procedure under the Americans with Disabilities Act.

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.

When Can You Be Fired Under the Family and Medical Leave Act?

The federal Family and Medical Leave Act (FMLA) allows you to take up to 12 weeks of unpaid leave to deal with a medical problem or to take care of a family member’s medical issues. But the FMLA only applies to companies with at least 50 employees who work within 75 miles of each other, and employees need to have worked at least 1,250 in the past year for the same employer before they’re eligible for FMLA leave. Small businesses or employees who haven’t hit that hour requirement aren’t protected under FMLA, and can be fired for taking leave.

However, assuming that you work for a large enough employer and you correctly filled out your FMLA paperwork, you can’t be fired while out on leave. Furthermore, when you return from your leave, your employer must give you back your old job or one that’s nearly the same (assuming you can still perform the job duties).

Is Your Job Protected Under State Leave Laws?

Many 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 these jurisdictions, you can't be fired while on paid or unpaid leave covered by state law. States with their own family and medical leave laws include California, Connecticut, Hawaii, Oregon, Rhode Island, Vermont, and Washington.

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 group benefits while you're out on leave (and applies to companies with only five employees). And Washington's Paid Family and Medical Leave Act (RCW Chapter 50A) protects your job and provides paid 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.

Can You Be Fired For Collecting Workers' Comp?

Your employer can't fire you for reporting a work-related injury, filing a workers' compensation claim, or taking off work while you collect temporary total disability benefits. The 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.

Can Your Job Be Terminated While on Short-Term or Long-Term Disability?

If you're collecting short-term disability or long-term disability insurance benefits, it's probably through your employer's ERISA-based insurance policies. These short-and long-term disability 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 from job termination while you collect short- or long-term disability benefits, you need to rely on a medical leave law, like the FMLA, or a disability discrimination law, like the Americans with Disabilities Act (ADA).

Does the ADA Protect You From Being Fired?

Even after you've exhausted your 12 weeks of annual FMLA leave per year (or if you're not eligible for FMLA leave in the first place) the ADA can make it difficult for your employer to fire you when you're out on disability leave. For example, the ADA covers more small businesses than the FMLA does—businesses with just 15 or more workers have to follow the ADA rules, rather than the 50 employee threshold for the FMLA to kick in.

Employers covered by the ADA must first try to work with you if they want to fire you for not being able to do the job.

When Does an Employer Have to Offer Reasonable Accommodations?

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. For example, an administrative assistant with carpal tunnel syndrome might be able to meet a job's basic word processing and data entry requirements with help from voice-activated software.

Examples of ways an employer could accommodate your disability include granting you more unpaid leave after you’ve exhausted your FMLA leave, allowing you to work a flexible schedule, or making your workspace more ergonomic (by giving you a sit-stand desk, for instance). It’s best to ask for accommodations in writing so that you have evidence in the event that your employer denies your request or wrongfully terminates you.

How Does the Employer Decide What Accommodations to Offer?

Your employer must work interactively with you to try to come up with adjustments 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 reasonable accommodations that won’t cause the company undue hardship. What constitutes undue hardship is usually based on the cost of the accommodations to your employer and the size of the company.

Can You Request Unpaid Leave as an Accommodation?

You can request unpaid leave as an accommodation for your disability, as long as it’s reasonable and doesn’t cause undue hardship to your employer. Generally, your employer must 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).

But your employer may be able to deny your request due to undue hardship if you're a key employee whose absence can’t be covered temporarily by existing or new employees without great cost, or you ask for a lengthy leave without a definite return date.

A good rule of thumb is that 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 and it won’t be considered wrongful termination.

Can You Be Fired For Requesting an Accommodation?

Sometimes. For example, 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 reasonable accommodations that allow you to do the essential functions of your job, your employer can fire you. Essential functions are the basic duties of a position that the person must be able to perform.

Employers can fire an employee who is unable to do the job's basic requirements. For example, a position loading and unloading trucks in a warehouse requires the ability to lift heavy boxes and maneuver a forklift. If an employee's disability prevents them from performing these essential job functions, the employer isn’t required to keep them in that position.

So if you can’t do the job despite the best efforts of your employer to accommodate you, you can be fired. But, if you were fired from your job even though you were qualified for it and able to perform its essential functions, you may be able to sue for wrongful termination under the ADA.

What Is Not Considered Wrongful Termination Due to a Disability?

The core provisions of the relevant statutes (ADA, FMLA, and workers’ compensation laws) are meant to protect people from being fired for exercising their rights (retaliation) or to prevent employment discrimination against people with disabilities. That doesn’t mean that nobody with a disability can ever be fired, however. Examples of scenarios that probably won’t be considered wrongful termination include:

• a general reduction in staff
• off-duty conduct not protected by law
• poor attendance
• dress code violations, and
• personality conflicts.

Generally speaking, if you were fired for a reason unrelated to your disability or as retaliation for exercising your legally protected employment rights, it’s unlikely to be wrongful termination. The ADA won’t protect you from being fired for showing up drunk to work, for example, even if you have a substance abuse disorder (which is considered a disability under the ADA).

What Can You Do If You're Fired While You're on Leave?

If you were let go while on disability leave (whether it was FMLA or another type of leave), speak to a disability or employment lawyer. You may have a claim for wrongful termination against your employer under the FMLA or ADA. But before you sue your employer, you'll need to file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing the ADA.

A lawyer can help you negotiate with your employer or file an administrative complaint with the EEOC, as well as help you assess the facts and decide how to proceed. In many cases, the key will be to prove that you were fired because of your disability and not because of your performance, your conduct, or your employer's financial situation. Your lawyer can use a set of legal tools (in a pretrial process called "discovery") to gather information from your employer.