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Can an employee be fired while on disability leave?

On Behalf of | Nov 24, 2015 | Disability Discrimination |

California provides broad protection to employees who are disabled. Sometimes an individual’s disability necessitates a temporary leave of absence. If the employee and employer meet certain criteria, the employer is not permitted to fire the employee while he or she is on a disability leave.

Disabled employees are protected under California’s Fair Employment and Housing Act (“FEHA”). In order to qualify for protection the employee’s disability must be recognized under FEHA. FEHA provides a very broad definition of disability. Generally speaking, a disability must limit a major life activity. California’s definition of disability encompasses that of the federal American’s with Disabilities Act, but it also goes further by including less severe, temporary, and even correctable disabilities.

Another threshold requirement for protection is the number of employees that an employer must have. FEHA generally requires an employer have a minimum of five (5) employees in order for a given employee to be protected from disability discrimination. If the claim is for harassment however, an employer may only need as few as one employee.

If an employee takes a properly noticed leave based on a recognized disability and the employer (of five or more employees) terminates his or her employment while on leave, that employer may be subject to liability under FEHA. Most employers are savvy enough to provide a reason for the termination that is not related to the disability. This reason is sometimes referred to as a pretext, providing a non-discriminatory reason for the termination when in reality the termination was motivated at least in part by the employee’s disability.

Sometimes it can seem to the employee like he is overmatched. Dealing with a disability can be stressful enough on its own. At The Rutten Law Firm, APC, we have years of experiencing successfully representing individuals who have been discriminated against based on their disability. If you have been fired while on disability leave it is important to contact an experienced employment attorney immediately. We can help you navigate the sometimes tricky process of enforcing your rights as an employee and make sure that you are not overmatched by a disingenuous employer.