When tragedy strikes in the form of illness or a disabling physical or mental condition, the last thing you want to worry about is keeping your job. Here are the answers to some of the biggest questions that arise when you are faced with a medical condition that impacts your ability to work.
I. CAN MY EMPLOYER (BOSS) FIRE ME IF I BECOME DISABLED?
Generally, the answer to this question is NO. Your employer has some legal obligations toward a disabled employee, but there are limits to your protection under the Americas With Disabilities Act, as Amended (“ADAAA”) and the New York Human Rights Law. If you become disabled and you are qualified to perform the job, your employer (boss) must make a reasonable accommodation that would enable you to continue working. However, if any reasonable accommodation that would allow you to perform the job causes an undue hardship on your employer (boss), your boss may be able to terminate your employment.
What is an example of a reasonable accomodation?
Reasonable accommodations include, but are not limited to: (1) making existing facilities accessible; (2) job restructuring; (3) part-time or modified work schedules; (4) acquiring or modifying equipment; (5) changing tests, training materials, or policies; (6) providing qualified readers or interpreters; and (7) reassignment to a vacant position.
** Note- You must ensure that you are protected by the ADAAA or NY Human Rights Law. Not all employers are subject to these laws. Check our posts on coverage under the ADAAA and NY Human Rights Law to learn more.
II. ARE THERE LIMITS TO WHAT MY EMPLOYER IS REQUIRED TO ACCOMMODATE?
Yes. If the accommodation you need creates an undue hardship on your employer, then your employer does not have to provide the accommodation. Generally, undue hardships are created when the cost of the accommodation is excessive or it creates a safety risk to others in the business.
REMEMBER… Your employer (boss) must prove that the reasonable accommodation poses an undue hardship. Even if your boss told you that the accommodation would create an undue hardship, he/she still must be able to prove it. So, if you have lost your job as a result of your boss claiming they can’t accommodate your disability, you may have legal claim against your employer (boss).
III. CAN MY EMPLOYER (BOSS) FILL MY POSITION WITH ANOTHER EMPLOYEE IF I BECOME SICK OR DISABLED?
Generally, the answer to this is NO, if your disability or illness is protected by either the Family and Medical Leave Act (“FMLA”), the ADAAA, or NY Human Rights Law. Under the FMLA, your boss may hire or have someone perform your duties while you are out on FMLA leave, but at the end of the leave, your employer must reinstate you to your previous position if you are able to return. If you are not able to return at the end of your leave, you need to determine if your serious illness under the FMLA is also a qualifying disability under the ADAAA or NY Human Rights Law. If your condition does qualify, then you need to take steps to secure a reasonable accommodation under the ADAAA and NY Human Rights Law. However, based on the accommodation, your job duties may be altered in order to enable you to continue working.
Under the ADAAA and NY Human Rights Law your boss cannot replace you if there is an available reasonable accommodation. Be aware that once you become disabled you must request a reasonable accommodation from your employer in order to protect your rights. It is not the employer’s legal responsibility to ask you if you need an accommodation. If there is no possible reasonable accommodation, then your boss can replace you with another worker. However, the employer must be able to demonstrate that there is no reasonable accommodation possible to allow you to perform your job.
I have seen too many employees face the added stress of losing their job when they or a close family member is faced with serious medical issues. It is one of the workplace practices that really infuriates me because illness and disability are generally outside of our control. Employees devote their lives to building value for the shareholders of a business. The least employers can do in return is take every step necessary to help one of its employees when in need. Unfortunately, in my experience, most employers do not go far beyond what is convenient for their business when assisting an employee. That is why it is essential to be aware of your rights and legal protections on the job. If you or someone you know encounters such a situation, please let them know they have rights and there are steps they can take to fight for their job. El-Hag & Associates, P.C can walk them through the process of securing a reasonable accommodation, or if one is unavailable, negotiating a severance package that will help them through a challenging time.
To learn more about your rights under disability law, family leave laws, or wage and overtime laws, visit:
El-Hag & Associates, P.C
777 Westchester Ave, Suite 101, White Plains, New York, 10604
• Http://www.Elhaglaw.com • [email protected] • (914) 218-6190 (office) • (914) 206 -4176 (fax)