If an employer fires an employee on the basis of a disability, it is considered disability discrimination and the employee can sue the employer for damages and/or reinstatement.
Protection for employees with disabilities is enshrined in various federal laws including the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Federal Family and Medical Leave Act (FMLA) (https://www.eeoc.gov/laws/types/disability.cfm ). Individual state laws also protect employees with disabilities against illegal discrimination.
Americans with Disabilities Act
Not every employee with a medical condition is considered disabled under law, hence protected by anti-discrimination laws (https://www.whitehouse.gov/sites/default/files/docs/employing_people_with_disabilities_toolkit_february_3_2015_v4.pdf ). To be protected under the ADA, an employee must be:
- Qualified for the job or able to perform the functions of the job
- Have a disability as defined by statute.
According to the ADA, a person is disabled if the person can show that:
- He/she has a physical or mental condition that substantially limits a major life activity such as talking, walking, hearing, seeing, learning or vital bodily functions such as the cardiovascular system, immune system and normal cell growth.
- He/she has a history of mental or physical conditions or impairments such as cancer
- He/she has a mental or physical condition that is not transitory or minor.
The ADA also does not apply to all employers. It applies to employers with 15 or more workers, employment agencies, joint labor management committees, and labor organizations.
How the ADA protects employees
The ADA makes it illegal for employers to fire employees on the grounds of disability as defined by the act. It requires that employers should make an effort to reasonably accommodate all employees with disabilities. However, the ADA places the burden squarely on the employee to inform the employer of their disabilities so that appropriate accommodation can be offered (http://www.nolo.com/legal-encyclopedia/can-you-be-fired-from-job-while-leave-with-disability.html ).
Accommodation is changing the work environment of the employee in line with his/her disability. It may involve setting up a wheelchair entrance, restructuring the disabled employee’s job duties or work schedule, giving him/her additional leave, installing braille signages, modifying desks and many others. The extent of accommodation given is usually negotiated between the employer and the employee.
An employer is only exempted from granting reasonable accommodation if doing so would cause undue hardship on his part.
Undue hardship arises where the accommodations are too expensive or too difficult to provide. In many cases, what fits the bill of undue hardship depends on the specific factors such as the size of the company, its financial position and the cost of making the changes.
If after making all reasonable accommodations and the employee cannot perform his/her duties, he/she can be legally terminated.
Employees fired while on medical leave: How the FMLA protects employees
The FMLA provides employees with 12 weeks of unpaid leave per year to take care of their own medical concerns or those of an immediate family member. However, the FMLA only applies to employers with over 50 workers located within 75 miles of each other.
Workers eligible for leave should have worked for their employer for at least a year and covered 1,250 work hours in the immediately preceding year.
Even though the prescribed leave is unpaid, the employee may enjoy short term or long term disability benefits.
The act makes it illegal for an employer to terminate the employment of an employee who is under leave. However, if the employee extends his/her leave by even a day, he/she can have their employment terminated for excessive absences (http://www.nolo.com/legal-encyclopedia/can-you-be-fired-from-job-while-leave-with-disability.html ).
The FMLA is a federal law. Individual state laws also offer protection to employees on leave, some of which are more generous.
Employees fired because of a disability while under health insurance cover can maintain their coverage for a limited period of time as prescribed by the federal Consolidated Omnibus Budget Reconciliation Act (COBRA), as long as they cater for the full cost of the cover. COBRA only applies to employers with 20 or more workers (http://www.employmentlawfirms.com/insurance-after-job-loss.cfm ).
Employees illegally fired have a legally enforceable claim against their employers. However, due to the complexity of the procedures involved in filing a suit, aggrieved employees should first consult/hire an attorney before starting any legal process.
There are strict regulations governing the filing of a suit. For example, employees who are the victims of discriminatory termination should file a Charge of Discrimination with the US Equal Employment Opportunity Commission (the commission) within the prescribed period of time. The filing of this charge should be done before an employee can institute a lawsuit against the employer (https://www.eeoc.gov/employees/charge.cfm ).
If a terminated employee wishes to protect their identity, the commission allows for an organization, individual or agency to file the charge on their behalf.
Once a charge is filed, the commission will recommend mediation to resolve the dispute between the employer and the employee. If the dispute cannot be resolved through mediation, the commission will refer the case to an investigator.
After investigations, if the investigator finds no violation of law, the employee will be issued with a Notice of Right to Sue. The notice constitutes permission to institute a suit in a court of law.
Where a violation of law is found, the commission will try to have a settlement reached between the employer and employee. If this fails, then the commission will refer the case to its legal staff or in certain cases to the Department of Justice, who will decide whether or not the commission should file a suit.
If the commission decides it will not file a suit, the employee is issued with a Notice of Right to Sue.
Individual states may have their own agencies such as the Fair Employment Practices Agency, charged with enforcing anti-discrimination laws. It is important that aggrieved employees consult a lawyer to plan out how their wrongful termination suit will be set out with regard to both federal and state laws.