Most people already know that in New York State an employee works on an “at-will” basis, which means employees can be terminated for virtually any reason that is not considered discriminatory under state and federal laws.

What are the Laws that Protect Employees with Disabilities?

The Americans with Disabilities Act (ADA) and the New York State Human Rights Law (NYSHRL) protect individuals with disabilities, such as by making it illegal to fire an employee because of his or her disability.   

  • Employers who have fifteen (15) or more employees are covered by the ADA. 
  • All employers are covered under the NYSHRL. 

Such laws protect those who meet the ADA or the NYSHRL’s definitions of disability, which include employees who are on disability leave as well as those who previously received disability benefits and then returned to work.  

Can an Employer Fire an Employee who is on Disability Leave?

An employee may be terminated even if the employee is taking or attempts to take disability leave, so long as there is a legitimate business reason that would not be considered retaliatory or impermissible under the state or federal laws.

Many employees who take short-term or long-term disability leave assume they have job protection while on such leave.

However, the purpose of disability benefits is not to offer job protection but to offer money benefits and protection when an employee is out of work for medical purposes.

Employers should know that they may NOT fire an employee who is on disability leave if the leave is also protected under any other state or federal laws, such as the Family Medical Leave Act (FMLA), which provides up to twelve (12) weeks of job protection.

Why Employers Are Scared to Fire Employees Who Take Disability Leave

Disability legal protections cause employers to hesitate to fire employees who are on disability leave because they fear being sued by the former employee for discrimination and wrongful termination.  

This can cause much stress and hardship for the employer, especially small business owners, who often find it to be impractical or even impossible to hold an employee’s job open while the employee is out of work on disability.  Many times, the employer is left with no choice but to hire a new employee to fill the disabled employee’s vacant role.

Under the laws, the employee has the burden to notify the employer that he or she has a disability so that the employer can provide a reasonable accommodation to allow the employee to return to work. Under both the ADA and NYSHRL, the employer must offer to make a reasonable accommodation for a disabled employee so long as it will not cause the employer an undue hardship which means significant difficulty or expense. 

For example, an undue hardship could if the employer demonstrates that the proposed accommodation is too costly, extensive, or disruptive to be adopted in the workplace.

An employer may not be liable for damages if it can show that a good faith effort, in an interactive process with the disabled employee, took place to identify and make a reasonable accommodation.

Based on the complexities of both state and federal laws, an employer should consult with an attorney to discuss all potential issues before terminating an employee who has or is receiving short-term disability benefits or long-term disability benefits as such legal determinations are very fact specific.

This article is intended for general information and educational purposes only and should not be considered legal advice or counsel. The substance of this article is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Regina Sarkis, Esq.