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The Law Offices of Samuel S. Reidy Blog

Tuesday, February 19, 2019

Can An Employee Be Fired from Their Job if They Are On Short-Term Disability or Workers Compensation?

One question that comes up quite a lot in the employment law world is whether or not an employee can be fired while they are out on short-term disability or workers comp.  In Massachusetts, the answer is that employees can, in fact, lose their job while out on short-term disability or workers comp - in most cases.

In most states, such as Massachusetts, employees are not entitled to job-protected workers compensation leave.  The same thing is true if an employee is out on short-term disability.  Massachusetts is an “employment-at-will” state.  That means that an employer can generally terminate an employee at anytime and for any reason or for no reason whatsoever.  An employer in Massachusetts is not required to hold an employee's job open while the employee is recovering from an injury.  However, there are a couple of exceptions to this rule. 

The primary exception to this rule is that it is illegal for employers to retaliate against an employee for filing a workers' compensation or short-term disability claim.  If it is found that an employer did fire an employee because that employee filed a workers' comp or short-term disability claim, or are receiving corresponding benefits, that would be considered illegal retaliation.  That being said, if an employee is unable to prove retaliation and the employer legitimately needed to replace the employee because they were out on leave, that is generally allowed in Massachusetts.     

The Family and Medical Leave Act (more commonly referred to as "FMLA") is a federal law that provides employees with up to twelve weeks of unpaid leave annually for personal medical issues or, in some cases, to take care of an immediate family member who is unable to care for themselves.  Most people are familiar with FMLA with regards to maternity leave.  However, not all employers are subject to the Family and Medical Leave Act.  The company in question must have at least fifty employees in order for FMLA to be applicable.  If the employee is on FMLA leave, he or she cannot be terminated unless they are on leave beyond the twelve week period.  However, the first day after the twelve week period, an employer can terminate an employee's employment. 

The Americans with Disabilities Act (ADA) is a federal employment law that makes it illegal for employers with fifteen or more employees to discriminate because of a disability.  This provides an extra level of protection for workers out on disability.  The Americans with Disabilities Act also requires covered employers to provide reasonable accommodations to employees with disabilities if said accommodation would allow the employee to continue doing their job.  The only exception to this occurs when providing a reasonable accommodation would cause “undue hardship” for the employer.  In Massachusetts, workers compensation laws extend protection of the state’s disability discrimination law to injured workers as well.  Massachusetts General Laws c. 151B, covers employers with six or more employees.  M.G.L. c. 151B maintains that employers with six or more employees must provide injured workers with reasonable accommodations if doing so would allow the employee to perform the essential job duties of their positions.  

As you may have guessed, what constitutes a "reasonable accommodation" and/or an "undue hardship" are common areas of employment law litigation as they can change for every situation.

There is some logic to the federal law of fifteen or more employees and the state law of six or more employees.  Anything less than six employees, it becomes easier and easier for the employer to claim that having an employee out on disability or workers compensation constitutes an undue hardship.

If you have any questions about employment law or your rights, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.


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