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Can I be fired while on disability from my job?

Smithfield, NC |

I was on on short term disability and moved to long term disability for 1 month then cleared to go back called my job and was told I no longer have a job.

Attorney Answers 2


  1. I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    You may have rights under the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA). If your employer has at least 15 employees and you have a disability as defined by the ADA (a physical or mental impairment that substantially limits one or more major life activities), the employer may be required to provide you with reasonable accommodation. Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable you to do the main functions of the job, allowing extra time off work for things related to the disability, and more. Also, the employer may not treat you differently from other employees because of your disability. For example, the employer may not refuse to promote you, deny you training or otherwise limit your job opportunities, and the employer may not fire you because of your disability. Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment.

    If your employer has at least 50 employees who work within 75 miles of one another, AND if you have worked for this employer for at least 1,250 hours in the immediately-preceding year, AND if you worked for this employer for a total of one year or more all together, you may have rights under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA). The FMLA is a federal law that provides up to 12 weeks of unpaid leave to employees who have a serious medical condition as that is defined by the FMLA, or who have responsibilities for an immediate family member with a serious medical condition. In general, a serious medical condition is something that lasts more than a day or two and requires medical attention. Note the 12 weeks of leave may be taken all at once or broken up into units of one month, one week, one hour or even less, provided the total does not exceed 12 weeks. At the end of the leave, the employer must return you to the same position or one that is substantially similar. Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions.

    Employment law is complicated and fact specific. If you believe either the ADA or the FMLA apply to you, if you want to check further s or if you want to find out about your state's laws, you may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.

    Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.

    I hope you can resolve your situation and wish you the best.

    *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


  2. I agree with Attorney Spencer. The short answer is, yes, you can be fired. Keep in mind that short term or long term disability is simply a form of insurance to provide income when you are unable to work. The law does not prohibit your employer terminating you simply because you are on disability. However, you may be able to file a claim for wrongful firing in certain circumstances if you are covered by the ADA or the FMLA.
    You should speak to an experienced North Carolina employment attorney as soon as possible if you are considering legal action.

    Kirk J. Angel is an experienced North Carolina licensed attorney who focuses his practice on employment law. Mr. Angel, who has focused on employment law for more than 15 years, represents clients throughout North Carolina and more information about him is available at www.theangellawfirm.com This response is for general informational purposes and does not constitute legal advice. Additionally, this response does not create an attorney client relationship. If you need legal advice, please contact a lawyer in your state who practices in the appropriate area.

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