Fired While on Short-Term Disability? You May Need to Hire an Attorney

Can You Be Fired While on Short-Term Disability?

Many workers in Florida may think that their positions are secure when they go on short-term disability due to a sickness or injury not related to their job. But it’s important to know that Florida is an “at-will” state, so your employer is legally allowed to fire you when you are away from work, depending on the circumstances. Fortunately, two federal laws could protect you while you are on medical leave from your job.

The Family and Medical Leave Act (FMLA)

Under the Family and Medical Leave Act (FMLA), you are permitted to take up to 12 weeks of unpaid leave per year for eligible medical conditions, to bond with a new child, or to take care of an ailing member of your immediate family. Not all employers are covered by the FMLA; your employer must have 50 or more employees within 75 miles of your worksite. In addition, to qualify, you have to work for a minimum of one year for your employer and for at least 1,250 hours during the 12 months prior to taking FMLA leave.

FMLA leave can be used in conjunction with short-term disability; in fact, many employers require their employees to use their 12 weeks of FMLA leave while they are on short-term disability. Consequently, the FMLA serves as a means to protect employees when they are receiving short-term disability. If you are on FMLA leave, as a general rule, your employer cannot fire you as long as you don’t exceed the allotted 12 weeks during a calendar year. That said, even if you take an extra day above the 12-week period, you could potentially lose your job because you are no longer under the FMLA umbrella.

However, if you return to work within the time allotted under the FMLA, your employer is required to allow you to come back to the job you had when you left or give you a position with the same pay, benefits, job duties, and location.

wrongful termination when your termination is illegal man being fired

The Americans with Disabilities Act (ADA)

Similar to the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) provides protection from being fired due to a disability. Many employees who are on short-term disability are protected by the ADA, which defines a disability as “a physical or mental impairment that substantially limits a major life activity.” Unlike the FMLA, the ADA applies to employers with 15 or more employees, rather than 50 or more.

Under the ADA, your employer is required to make reasonable accommodations as they relate to your disability, as long as they won’t create “undue hardship” for your employer. However, you have to let your employer know that you have a disability so that accommodations can be made. Some examples of providing accommodations include modifying your job duties or schedule, ensuring that the workplace is wheelchair accessible, providing written assignments and instructions for you if you have a learning disability, and permitting additional unpaid leave.

As to whether the above accommodations can be defined as undue hardship, it varies among employers, depending on a number of factors, including employer size and the cost of making the accommodations. If your employer is unable to make reasonable accommodations, it can legally terminate you.

In you are on FMLA leave, your employer has to determine how it can accommodate you on the job before letting you go or not allowing you to come back to work. It’s imperative that employers and employees work together with the goal of accommodating every employee in mind. This may take some back and forth, but your employer has to make a good faith effort before considering terminating you simply because you can’t carry out your essential job functions.

When Can/Can’t You Be Legally Fired Under the FMLA and ADA?

The bottom line is that you can’t be discriminated against due to a disability or because you are pregnant. For example, if you are taking FMLA leave and are receiving short-term disability benefits, your employer may claim that you can’t perform the essential functions of your job. But there are different definitions of disability, all of which make it difficult to determine whether you can or can’t do your job. Here’s a quick rundown of when you can’t and can be legally fired when you’re on medical leave:



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Can’t Be Legally Fired:

  • You are on FMLA leave, regardless of whether you are able to perform your essential job functions or not.
  • You are able to perform the essential functions of your job with reasonable accommodations, regardless of whether you are on FMLA leave or not.

Can Be Legally Fired:

  • You don’t return from FMLA leave after taking your allotted 12 weeks during a calendar year.
  • You failed to notify your employer that you were going to take FMLA leave and used up all of your sick leave or violated your company’s sick leave policy.
  • You are not able to perform the essential functions of your job even with reasonable accommodations.
  • You are able to perform the essential functions of your job with reasonable accommodations, but you don’t return to work once those accommodations have been provided by your employer.

If your employer did not have a legitimate, nondiscriminatory reason for firing you while you were on FMLA leave or didn’t work with you to provide reasonable accommodations when you were ready to return to work, you may want to speak with a wrongful termination attorney. In FMLA discrimination cases, the burden of proof ultimately falls on your employer, so they need to show that you would have been fired or laid off regardless of whether you had taken FMLA leave.

Fired While on Short-Term Disability? Contact an Attorney.

If you feel as though you may have been wrongfully terminated while you were on FMLA or short-term disability leave, it could be in your best interest to seek legal counsel. Wenzel Fenton Cabassa, P.A.’s team of professional employment law attorneys can answer any of your questions and help you decide the best course of action. For more information on the FMLA, including what you need to know about taking a medical leave of absence, download our free eBook What Every Employee Needs to Know About Their FMLA Rights.

Understanding FMLA
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