Fired Due to Disability: Is it Legal?

Several laws give employees a right to take time off -- or to reasonable accommodations -- for disabilities.

By , J.D.
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If you were fired because of a disability, you may have legal claims against your former employer. Under the Americans with Disabilities Act (ADA), employers may not discriminate against qualified people with disabilities, and must make reasonable accommodations to allow such employees to do their jobs. If you had to take time off for your disability, you may also be protected by the Family and Medical Leave Act (FMLA).

ADA Protections

The ADA protects qualified people with disabilities from workplace discrimination. You are qualified as long as you have the necessary credentials, licenses, experience, and so on, for the job. You must also be able to perform the essential duties of the job, with or without accommodation. An employer need not hire or retain 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 him from performing these essential job functions, the employer need not retain him in that position.

Employees are protected even if they need a reasonable accommodation to perform the job's essential functions. For example, an administrative assistant with carpal tunnel syndrome might be easily able to meet a job's basic word processing and data entry requirements, with help from voice-activated software. Needing to take medical leave can also be a reasonable accommodation. For more information, see our article on taking time off as a reasonable accommodation.

If you were fired from your job because you have a disability, even though you were qualified for the job and able to perform its essential functions, you may have a discrimination claim under the ADA.

FMLA Protections

The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take time off work for certain caretaking and medical responsibilities, including for the employee's own serious health condition. If your disability also qualifies as a serious health condition under the FMLA (many will), you have the right to take up to 12 weeks off in a 12-month period, if you are incapacitated and unable to work.

FMLA leave is unpaid. However, employers must continue the employee's group health insurance while the employee is out on leave. And, the employee is entitled to be reinstated after using FMLA leave. Therefore, if your employer fired you while you were out on FMLA leave, because of your disability, you might well have an FMLA claim.

For more information, see Nolo's article on when you can be fired because of disability leave.

Hiring an Attorney

If you were fired because of your disability, you should talk to an experienced employment lawyer right away. 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. A lawyer can use a set of legal tools, in a pretrial process called "discovery," to gather information from your employer. A lawyer can also help you assess the facts and decide how to proceed. And, a lawyer can make sure you protect your legal rights by filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC) or similar state agency, and by filing a discrimination lawsuit, within the time limits set by law.

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