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Although disability insurance policies offer income protection to people who are unable to work due to a disability, they do not offer job protection. Employers are legally allowed to terminate a worker who is receiving disability benefits, but there are some key exceptions. Read on to learn more about your rights as an employee and when to seek advice from an attorney.

Americans with Disabilities Act (ADA)

The primary federal protection for employees on disability leave is the Americans with Disabilities Act, or the ADA, which prohibits the termination of an employee due to a covered disability. Covered disabilities include any impairment (mental or physical) that affects a person’s ability to walk, see, learn, lift, breathe, speak, or perform other major life activities. Cancer, epilepsy, cerebral palsy, and diabetes are among the most commonly covered disabilities. The ADA does not cover short-term illnesses or conditions like the flu or a sprain, and pregnancy (barring complications) does not qualify as a disability.

The ADA applies to businesses with at least 15 employees. An employer subject to ADA is required to reasonably accommodate an employee’s disability. This could include desk modifications, installing wheelchair access, and restructuring schedules or certain job duties. Unless these accommodations create a true hardship for the employer, the employer must work with the employee to try specific accommodations prior to terminating the employee.

Many, many different kinds of conditions—physical or psychological—can qualify as disabilities.

It is the employee’s responsibility to inform the employer of their disability, as not every disability is visible and may not be obvious to an employer.

“An employee who has a disability, and believes that he or she needs accommodation, must reach out to the employer,” says Steven M. Warshawsky, the founder and principal of The Warshawsky Law Firm. “If you have situations that aren’t obvious, it’s all the more imperative for the employee to contact the employer about the need for the accommodation. Legally, the employer does have to provide reasonable accommodations for a person with a qualifying disability, but the employee can’t just assume that’s going to happen."

Some companies offer short-term and long-term disability policies for purchase. These policies frequently provide additional benefits, above and beyond what is covered by ADA, and they may cover more conditions and for a longer duration. Additionally, the ADA was amended in 2008 to broaden the scope of qualifying disabilities under the law.

Family Medical Leave Act (FMLA)

Some short-term leave is also covered by the FMLA, which provides employees with 12 weeks annually of unpaid leave for personal or family medical issues. The FMLA, unlike the ADA, was created to manage an employee’s need to care for a family member or spouse, while the ADA is focused on helping employees who are suffering from a medical condition that prevents them from performing the duties of their job.

Like the ADA, not every workplace is subject to FMLA: the act only applies to companies with at least 50 employees, and the employee in question must have worked for the employer for at least one year and for a minimum of 1,250 hours in the preceding year. An employee who meets these requirements cannot be fired from an employer who is subject to FMLA, as long as the employee does not exceed the 12-week leave period.

FMLA is often used as a form of maternity leave or for employees who need to care for sick or dying parents. Because the United States does not have a national paid maternity leave policy, multiple states—including Rhode Island, California, and New Jersey—have implemented their own family leave policies. States with full-scale policies include paid leave for fathers (up to six weeks), and more time off work for mothers. These policies work in tandem with FMLA.

Employees can be legally fired while on disability (ADA or FMLA) if they fail to:

  • return from FMLA or ADA leave within the allotted 12-week time frame

  • declare that they are on FMLA or ADA leave

  • perform essential job functions after the implementation of reasonable accommodations

  • return to work after reasonable accommodations have been made

When to seek the advice of an attorney:

If you were fired while on disability leave, it is essential to speak with a disability or employment lawyer, as you may be entitled to file a wrongful termination claim. An experienced disability or employment law attorney will walk you through the steps of placing your claim with the EEOC, and will help speed up what can be a lengthy administrative process with a number of strict filing deadlines.

Most importantly, an attorney will be able to determine whether your rights were violated, and whether federal protections exist for your case.

“People probably aren’t aware if of the breadth of protections offered by the ADA,” Warshawsky says. “Many, many different kinds of conditions—physical or psychological—can qualify as disabilities. If those conditions are impacting an employee’s ability to do their job, then they may be entitled to reasonable accommodations. The law is quite broad and quite sweeping in its requirements. More people are covered by the law than probably realize.”