I was recently fired. There reason was because i was out on disabilty. I belong to a union. Can they do that?.

1 answer  |  asked Jun 6, 2005 5:46 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Terminated While on Disability

When you say "disability," I assume that you mean New York State Disability Compensation, as administered by the Workers' Compensation Board. In other words, you got hurt or sick off of the job, and needed to take time off.

The answer to you question is, Maybe.

The New York State Disability law provides only limited protection. You can be fired because you are unable to work due to a disability, but you cannot be fired because you filed for New York State Disability benefits. It is a fine distinction, and it is very difficult to prove the narrow level of intend required by the law.

The New York State Disability law also needs to be read against other laws, particularly the Family Medical Leave Act.

Not all employees are covered by FMLA. You are covered if you work for an employer that is big enough to have 75 employees within a 50 mile radius of your work location. Further, you need to have been with the employer for at least one year, and have worked a certain amount of hours in that year (about 25 to 30 hours per week if you worked every week for the one year period).

If you qualify, then an employer is required to hold your job open for you for a period of 12 weeks while you are out on disability. Your condition, however, has to qualify as a "serious health condition."

FMLA does not offer complete job protection. For example, if while you are out on disability, the employer discovers a major screw up on your part, the employer can still fire you for the screw up. But the employer cannot fire you because you are unable to work.

Note that generally the 12 weeks is unpaid. Depending on the employer's policy, the 12 weeks might include weeks for which you took sick leave (and vacation to cover your period of disability) -- this is the usual policy. However, some employers allow you to use up sick leave, vacation and other leave, and then take 12 weeks unpaid FMLA in addition to that.

Another set of laws that would come into play are laws relating to handicap discrimination. Here, the more helpful law, from the employee's point of view, would be the New York State Human Rights Law. To some extent, your rights under NYSHRL might overlap with your rights under FMLA.

The situation I'm thinking about would more likely apply to cases where an employee just discovers that he or she has a chronic but controllable illness, such as diabetes. The employee might suffer an extreme reaction which results in doctors, for the first time, diagnosing the condition. The employee may need some time, but not a lot of time, to recover and to learn how to control the condition.

Some employers might make all kinds of assumptions about certain conditions. Diabetes is a good example of that. An employer might assume that an employee with diabetes might be subject to diabetic reactions that include blackout and seizures. That employer might not want the employee operating heavy machinary, or working with customers. So, the employer fires the employee.

Here, the problem really isn't the employee's period of disabilty. It is the employer's discriminatory attitudes about active employees with disabilities. The actions following the discriminatory attitudes would violate the NYSHRL.

posted by David M. Lira  |  Jun 7, 2005 09:07 AM [EST]

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