can employer terminate you when you are on long-term disability?

[scorpie]

I live in the state of California. I was diagnosed with cancer last year and currently under long-term disability (partly) until the end of the month (I work part-time and the other part is disability). I feel that I need to extend my part disability and work part time. However, I am afraid that my employer wouldn't like it and will look for excuses to terminate me.
Can they do this?
What would be your advice on this?

thank you in advance for your advice.
S.

[cbg]

The literal answer to your question is, yes, an employer can fire you while you are on long term (or short term, for that matter) disability.

While an employee cannot be fired BECAUSE they are disabled, an employer has a business to run. An employee who is unable to return to work after the maximum amount of time mandated by state or Federal law or is unable to perform the essential functions of the position can legally terminated, regardless of whether they are still on disability leave or not.

While I could be mistaken about this, I believe that the only state-mandated medical leave is for pregnancy. Therefore, you would be subject only to the Federal law, which grants you a total of 12 weeks protected medical leave under the FMLA. Once you have taken, either in a block or in intermittant segments, a total of 12 weeks medical leave, the employer has no legal obligation to hold your job any longer, regardless of your medical status and regardless of how legitimate the need for additional leave may be. Your employer would be within his rights to count that portion of the day that you do not work, as FMLA time, and term you when your FMLA time is exhausted.

However, there is one option you might want to consider. Whether it will protect your job or not is subject to factors we do not have available to us; I do NOT guarantee that this will work.

The Americans with Disabilities Act provides that an employer must provide a REASONABLE accomodation when a qualifying employee requests one AND that accomodation would allow the employee to perform the essential functions of your position. IF AND ONLY IF you would be able to perform ALL of the essential functions of your job UP TO STANDARD while working part time, then it MAY be that your employer would be amenable to considering a shortened schedule as a reasonable accomodation. Very, very important caveat: The employer is NOT required to eliminate any of the essential functions of your position from your job description (although eliminated non-essential functions can be considered a reasonable accomodation). Your employer is also entitled to hold your quality of work to the same standard as a non-disabled employee. If a part time schedule would NOT permit you to do all the essential functions of the position up to that standard, then shortening your schedule would NOT be a reasonable accomodation and barring a different accomodation that would work being provided, it would be legal to term your employment. Also, your employer is NOT required to give you the accomodation you want or that your doctor recommends as long as the accomodation they require is effective. So if they offer an accomodation that would be effective but would still require you to work full time, that is legal and if you refused it, they would have no liability.

I know this is confusing so if you need clarification, say so and I'll be glad to help.

[scorpie]

Thank you very much for the detailed info. My job consists of projects assigned per day to day basis. I work 4 hours a day, so they will give me project that lasts 4 hours or 2 projects with 2 hours each. Basically the nature of the job is, in normal working hours (8 hours), we are given projects that last for that long. If it's overlap (usually known from the beginning), it will be outsourced. So regardles how many hour you work a day, whatever assingned to you, it will get done for sure... no pending whatsoever.
Therefore, I think I consider that I'd be able to perform ALL of the essential functions up to standard (only less projects are done).

However, if my boss says, 'we are busy, we need someone full-time to handle more projects' Can they use this as a reasonable reason to terminate me? Wouldn't it be considered as discrimination?

sorry i am really confused about what to do on this... especially if on my next check up my doc says that I still need to work part-time to recover more... and being terminated from my job would be the last thing that I wanna face at this point.

thanks again.

[cbg]

Scorpie, if they need someone full time, then they need someone full time, and it is NOT illegal discrimination to term you. Discrimination would be, "Scorpie is ill; let's term him". However, "Because Scorpie is ill, he cannot get all of his work done and we need someone who can get his projects finished; we have to term him" is a different situation and, barring all the ifs, ands and buts in my first post, is legal.

You have indicated that while you would be able to perform all the essential functions, and do so to standard, you would have to do less projects. That, RIGHT THERE, is your boss's justification. Doing fewer projects could in itself, be considered not performing to standard.

The ADA is there to provide an even playing field. It does not, and was never intended to, give a disabled employee special privileges. The disabled employee is required to perform just like a non-disabled employee.

I realize this may sound harsh, and I do not intend it to. I'm very sorry for the situation you find yourself in, and I understand exactly where you are coming from. But the fact of the matter is, in the circumstances you describe, your employment cannot be guaranteed.

BTW, did you realize that your disability benefits will continue regardless of whether you are employed or not? They don't end if your job does.

Obviously I can't say if your employer WILL term you. I can only tell you that he CAN. And I'm also talking in a vacuum; there are factors that you can't give me on a bulletin board that could affect the situation. Depending on what kind of projects you're talking about and the circumstances of the company, handling fewer projects might be reasonable. I can only give you a very general overview of the situation.

[scorpie]

cbg,
thanks again for your input.
I will give a lot of thoughts on this. Plus, I will see what my prognosis is...probably I worry about something I shouldn't.

I didn't know that my long-term disability will continue even my job doesn't. How does this work since it's deducted monthly from my paycheck?

s.

[cbg]

Well, I suppose I can't say POSITIVELY that it won't be affected since I haven't read your policy, but I've been working with employment benefits for almost 25 years and I have NEVER seen a disability plan that was dependent upon employment status.

Simply put, the disability carrier has "bought" your claim. As long as you continue to be disabled as defined by the policy, your coverage will continue. The premiums were determined with the understanding that the occasional individual would continue to receive benefits after their employment (and premiums) were discontinued. After all, there are people out there who are totally disabled for ten years or more. You can be certain that their employers have not kept them as active employees for ten years.

Look at it this way. The law says that the MAXIMUM length of time an employer is required to hold open a job, is 12 weeks. While a few states extend that slightly, no state that I know of requires an employer to hold a job longer than four months. A great many short term disability policies, let alone long term, won't have been exhausted by that time; many STD policies last for 26 weeks and I've never seen an STD policy that was for less than 13 weeks. If you had to continue to be employed for disability benefits to be in effect and the law only requires 12 weeks job continuation, why would there even be long term disability policies since no one would be employed long enough to go on them?

[scorpie]

ok, that makes me feel a bit better, but I still do not want to be terminated by my employer.

If you were in my situation, would you worry that your employer terminated you?

s.

[cbg]

Of course I would, and of course you don't want to be terminated. There's nothing unreasonable about that. But you're asking me to tell you that your employer CANNOT terminate you, and I can't give you that assurance. It simply is not illegal discrimination to terminate someone who is no longer able to do the job.

What's your relationship with your employer? Are you on good terms, bad terms? What kind of a guy is he? Has he fired other people who've been unable to work full time? (That's a pretty good indicator right there.) Does he get angry easily and if so, does he stay mad, or is he pretty laid back? You may be worrying over nothing.

[scorpie]

I am not saying that I wanna hear you tell me that my company cannot fire me. I just want to know 'how likely' would they do this... because of lawsuit, etc.

my relationship with my company is fair I guess. My boss is a sissy. He's afraid of dealing with everybody in the company, especially HR. ..don't know how he became a manager from the beginning... So far they've been understanding and supportive with my situation. But now since I am working PT, they don't seem to like it much and expect me to work FT next month. I am thinking that once I go FT, they can just fire me like most people who take worker's comp.

s.

[cbg]

There is no possible way for me to gauge how likely it is. I don't know him; I don't know the circumstances of the company; I don't know what your business requirements are. That's asking too much of a message board, sorry.

BTW, just as they can't fire someone BECAUSE they are disabled, they can't fire someone BECAUSE they took workers comp. But a workers comp claim does not generally give them guaranteed employment rights either; in some states (and I think, though I could be mistaken, that yours is one of them) they may have first shot at rehire for any open positions for which they qualify after they are able to return to work, but the employer does not have to keep them employed if they are not able to return to work, either.

[scorpie]

so this thing freaked me out today ..
I received a letter from this company "Benefit Concept" (I am sure you know who they are). So they provide Cobra. Why did the letter say that "Your benefit dept has notified us that your healthcare benefits terminate effective feb 3,2004 because of termination of employment"

I am not terminated and I am still receiving my healthcare benefits. In facts, my spouse was just added to the benefits last week.

Do you by the chance know who this Benefit Concept is? Were they really contacted by my employer? or they just learnt this from the some marketing company who tracks unemployed or disability people ?

s.

[cbg]

I have never heard of a company called Benefit Concept and I have no idea where they got your name or who they are. I did a Google search and didn't come up with them, either.

You're going to have to contact your employer and ask them what's up. Sorry I couldn't help.

[scorpie]

It's actually called 'Benefit ConceptS' I missed the S.
I called my insurance and there seemed to be no problems or changes.

Anyhow, I got this interesting publication by NCCC (Northen California Cancer Center) about working with breast cancer (productive solutions for employers).

One paragraph in the "termination" section says:
"it is unlawful to terminate an employee because that person has breast cancer. Termination can be expressly stated or constructively demonstrated, as in a situation where the employment situation is made untenable for an employee who has breast cancer"

Though I am not sure if this also applies to someone who's taken a long leave.

what's your opinion?

[cbg]

All that means is you can't say; "Mary has breast cancer; she's fired". It does NOT mean that if Mary has used up all the leave available to her and she still cannot return to work, the employer has to leave her on the books as an active employee. She can still be fired for being unavailable for work, provided she has been granted all the time required by Federal, state and local laws. She just can't be fired BECAUSE she has breast cancer.

[scorpie]

just want to update you.. I told my employer that I am extending my PT work .. We'll see.

Thank you for all your info ! It's very helpful.
S.