Medical disabilty then laid off

I was laid off one day after i returned from a 2 1/2 month medical disabilty (torn achilles non work related) all the paperwork was done and i recieved disabilty benefits throughout that time. Is this legal? I was given no papers to sign and no severance pay. The reason was "restructuring". My job performance was excellent as i had recieved a raise 6 weeks before my accident. I asked for 12 weeks severance and am waiting to hear back. Can they legally lay me off immediately after returning from medical disabilty?

1 answer  |  asked Aug 17, 2004 4:31 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Fired After Returning from Disability

Disability does not confer on the disabled person any right to a job. However, disability is a protected classification under both federal and state anti-discrimination laws. So, you cannot be fired if the motivating factor is your disability. But this is hard to prove, since you need to show that the decision-maker's thinking was at least in part focused on the disability, as opposed to something else.

The receipt of New York State disability benefits also does not confer any right to a job. However, if you can prove that the employer decided to terminate you because you filed a claim for disability benefits, then you would have a claim. But again, such a claim is hard to prove because you need to essentially climb into the decision-maker's head, not easy to do. (The same would be true if you are talking about some type of private disability benefits.)

If you have worked for an employer long enough and for enough hours, and if the employer is large enough, then you may be covered by the Family & Medical Leave Act. FMLA provides some protection from being fired, but only 12 weeks protection. A FMLA case is a lot easier to prove because, unlike the anti-discrimination laws, it is not an intent law. That is, you don't have to climb into a decision-maker's head. You only need to prove you were eligible for FMLA leave, and you were terminated during the time you were using FMLA leave.

However, like the other laws discussed so far, FMLA does not confer a right to a job. If you would have been fired if you had not taken FMLA leave, you can be fired, even though on FMLA leave. If your job really was eliminated during a restructuring, then your firing probably was proper.

Now, firing someone while on FMLA leave doesn't seem, from an employer's perspective, like a very good idea. And I can see an employer wanting to discourage employees from taking FMLA leave. So, it isn't beyond the pale that an employer might want to make an example of an employee by firing that employee for taking FMLA, but by not firing that employee until the employee returns from FMLA leave. The employer might try to further hide its true motivation by claiming a restructuring involving only one employee. (Courts will usually give employers a lot of lead way in true restructurings, and employers would want to take advantage of that traditional deference.)

Now, there are a lot of assumption in this hypothetical, but if the assumptions were factually true, the employer would be in violation of FMLA. But, again, it would be a hard case, because you again have to start climbing into the employer's head.

In those cases were you have to climb into the employer's head, employees can use circumstantial evidence, but, when you rely on circumstantial evidence, you need more than one or two pieces of evidence to succeed.

Incidentally, employees are generally not entitled to severance pay.

posted by David M. Lira  |  Aug 18, 2004 08:50 AM [EST]

Answer This Question

Sign In to Answer this Question

Related Questions with Answers

Have an Employment Law question?

Virginia Employment Lawyers

Matthew Sutter Matthew Sutter
Sutter & Terpak, PLLC
Annandale, VA
Sheri Abrams Sheri Abrams
Sheri R. Abrams PLLC
Oakton, VA
Edward Lowry Edward Lowry
Charlottesville, VA
Matthew Kaplan Matthew Kaplan
The Kaplan Law Firm
Gerald Lutkenhaus Gerald Lutkenhaus
Virginia Workers Compensation & Disability Lawyer
Richmond, VA

more Virginia Employment Lawyers