After an injury, you may first go on workers’ compensation if you are injured on the job. If an extended recovery period is needed beyond what it covers, you can request job-protected disability leave under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA). However, you may worry about whether your employer can legally fire you while on disability leave. As unfair as it may seem, some employers take improper actions against employees on approved medical leave.
Consider a situation where, as a construction worker, you suffer a shoulder injury from falling while carrying materials on the site. You would then need to take approved disability leave to recover. Unfortunately, there are cases where an employer chooses to terminate an employee while they are on protected leave, either in retaliation or due to misguided beliefs about the employee’s capabilities after the injury.
Some employers do not always follow the rules correctly. Fortunately, there are laws against such discriminatory terminations. It’s important to know these legal protections and how they protect eligible South Dakota employees in difficult situations.
What is disability leave?
Disability leave is job-protected time off allowed under laws like the FMLA and ADA. Whether your serious health condition or disability is work-related, these laws protect your job when you need to take leave. Dealing with a severe medical issue can be extremely difficult, especially when you need your income to support yourself and your family.
Fortunately, disability leave laws protect your employment so you can take the time needed to manage your health without fearing job loss.
Who is eligible for disability leave?
You may qualify for job-protected disability leave if you have a serious health condition or disability — short-term or long-term — that prevents you from doing your regular duties.
The FMLA and ADA each allow workers to get time off with their distinct allowances. However, to be eligible, you must meet specific requirements depending on the law.
Under the FMLA, you must:
- Have worked for your employer for 12+ months
- Logged 1,250+ hours in that time
- Your company has 50+ employees within 75 miles
Under the ADA, you must:
- Have a disability limiting a major life activity (such as seeing, hearing, walking, breathing, learning, working, etc.)
- Work for an employer with 15+ employees
Employees can take up to 12 weeks of unpaid, job-protected leave per year if eligible under the FMLA. The ADA requires covered employers to provide reasonable accommodations, including disability leave as needed.
Can you be fired while on disability leave?
While out on disability leave, you may wonder, “Can my employer fire me while on disability leave?” Both the FMLA and ADA say that they cannot. Terminating you while you are on approved disability leave is likely disability-based discrimination. If you believe your employer has illegally fired you for an approved disability leave, here are ways to report or file a complaint.
The Family and Medical Leave Act (FMLA)
The FMLA makes it illegal for employers to fire or discriminate against you for taking approved FMLA leave. If your employer fires you for taking short-term or long-term disability leave to attend to your own serious health condition, they are breaking the law.
You can report this by filing a complaint with your state’s Department of Labor (DOL). A DOL investigator will look into the facts of your case to decide if your employer violated the FMLA.
If the DOL agrees, they will not let that go unnoticed. They can make your employer rehire you, pay you back wages you missed out on and ask for other remedies on your behalf.
The Americans with Disabilities Act (ADA)
The ADA prohibits employers from discriminating against workers with disabilities. This includes taking actions such as firing them or mistreating them due to their disability. Other wrongful actions include harassment, denying promotions, or pay discrimination.
If your employer fires you for taking an approved leave due to a disability like cancer, depression, diabetes, mobility impairment, etc., that may be considered disability discrimination under the ADA.
You can report this by filing a charge with the U.S. Equal Employment Opportunity Commission (EEOC). They will investigate whether your employer discriminated against you because of your disability.
If the EEOC agrees that discrimination occurred, they will first try to resolve it through mediation and settlement. If that fails, they may file a lawsuit on your behalf. In one scenario, the EEOC may not file a suit or facilitate a settlement. In those situations, they must provide you with a “right-to-sue” notice. This notice allows you to pursue legal action against your employer independently. You can seek the help of a local personal injury law firm to help with the legalities of this process.
What you need to do while on disability leave
The law protects your job when you take an approved disability leave. However, you still have responsibilities to keep your position secure. A common concern is being fired while on disability. Rest assured, the law prohibits this as long as you follow the proper procedures.
While on leave, make sure you:
- Inform yourself about the details of your disability insurance policy. Apply properly to get your benefit payments.
- Follow all company rules for disability leave. Read and understand your employee handbook carefully.
- If you need job changes when you return, discuss options with your employer and find reasonable accommodations that allow you to work comfortably.
- Tell your employer right away about your injury/disability and need for leave. Have medical documents ready.
- Stay in contact with updates. Let your employer know how you’re doing and when you may return.
Doing these things creates a record showing you followed the right steps. This makes it harder for your employer to cause any issues over your disability leave.
Protections for employees with a disability
Being injured or becoming disabled on the job is an incredibly challenging situation. You are left to cope with the physical and emotional impacts. On top of that, you also need to make sure your job remains protected during your recovery period. However, do not worry if your employer breaks disability-related laws. Remember, there are protections against firing disabled employees who are terminated while on disability leave or due to their disability.
If your employer terminates you or takes other discriminatory actions related to your disability, you have recourse through official channels. You can direct your claims or complaints to the proper agency, like the EEOC or DOL, depending on the violation.
An attorney experienced in laws such as workers’ compensation can help you. When you are fired while on disability leave, a legal professional can evaluate your case, file the appropriate claims on your behalf and protect your rights.