Long-term disability can be confusing. The disability payments, insurance filings, doctor visits and everything that goes along with it. Eventually, you’ll be ready to go back to work.
But will your job still be there?
It Can Happen
Your employer can’t fire you just because you are on long-term disability, or because of your disability. But your employer can fire you while you’re out for reasons besides disability. There are laws to protect you in the event that you are disabled, and make sure you can go back to your job when you’re no longer disabled or recovered enough to return to work. The Herren Law Firm has helped over 4,000 Houstonians work through the maze of long-term disability. Let’s look at how the law protects you.
Family Medical Leave Act (FMLA)
The FMLA is a federal law that applies to companies with more than 50 employees (small businesses are generally exempted) and you must live within 75 miles of your company. Your company is required to give you 24 weeks of unpaid leave for things like physical or mental illness (yours or a family member), having a baby, etc. You must request FMLA leave according to your company’s policies, or you could be terminated for not notifying your employer that you need FMLA leave.
If you’ve properly requested FMLA leave, your employer must a) give you back the position you left, or b) give you a similar position, if you’re still able to do the same job you did before.
Americans with Disabilities Act (ADA)
The ADA is another federal law that applies to businesses with 15 or more employees. The ADA defines a disability as “a physical or mental impairment that substantially limits a major life activity.” If you meet this definition, you may be able to extend long-term disability after your FMLA time runs out. Your employer must offer reasonable accommodations after you notify them of your need. This can include flexible scheduling, wheelchair access, Braille signage, or even granting additional ADA leave.
Reasonable accommodation should not cause your employer an “undue hardship,” and your employer will determine if the accommodations will be enough for you to do your job. Negotiations may be necessary, and your employer may request that you try a number of different accommodations to see which ones work. If none are available, or they are unable to accommodate you to return to work, the company can legally fire you.
Business Changes
Your company may undergo a reorganization while you are out on disability. If this happens, and your job is eliminated, you can be terminated while you’re on leave. The company may not be able to keep your job open for an extended period of time due to business needs, and may be forced to hire someone else to do your job in your absence, whether temporarily or permanently.
You can be Fired at Any Time
Most employees are considered “at-will,” meaning that unless you have an employment contract/guarantee in writing and in place, you can be fired for nearly any reason at any time, or for no reason at all, unless that reason is illegal, i.e., discrimination, a medical condition, etc. It’s important to keep records of your requests for leave and accommodations under FMLA and ADA, as well as other important employment-related paperwork you may need later to prove your case. If you feel you’ve been wrongfully terminated, contact the Herren Law Firm for a free consultation.
If you were fired for poor performance, excessive absenteeism or another reason that an employer would normally fire someone for, then your employer can fire you legally. Under these circumstances, you can be fired during the long-term disability leave or when it ends.
Your employer can also legally fire you if:
• You do not return to work after using all of your sick/vacation time
• After FMLA leave, (or fail to declare it before leaving) after your employer has provided reasonable accommodations
• Can’t do the job despite the offered accommodations
Don’t Do It Alone!
We’ve helped over 4,000 Houstonians with disability related legal issues, and we’re ready to help you with yours. For a free consultation with attorney Bill Herren, call us today at (713) 682-8194 if you need legal help while you’re on long-term disability.
Don’t wait—it might be too late.
