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Can an employee be fired while on disability leave?

by | Jul 7, 2020 | Disability Discrimination, Workplace Discrimination, Wrongful Termination |

California provides broad protection to employees with a physical or mental disability. 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. If the employee has a disability, they must be provided with a leave of absence or other reasonable accommodation unless there would be an undue hardship to the employer. There is a high burden on the employer to show that an accommodation would be an undue burden. To prove undue hardship, an employer must show that the accommodation would require significant difficulty or expense. They must consider the nature and cost of the accommodation needed. 

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 Americans with Disabilities Act (ADA), but it also goes further by including less severe, temporary, and even correctable disabilities. An employee is also considered disabled based on their association with a disabled child, spouse, or other close family member.

Another threshold requirement for protection is the number of employees that an employer must have. FEHA generally requires an employer to 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 and wrongful termination laws. 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 that they areovermatched. Dealing with a disability can be stressful enough on its own. At The Rutten Law Firm, APC, we have years of experience 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.