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  1. #1
    Join Date
    Jun 2005

    Can you avoid being laid off by filing disability?

    What is the name of your state? CA

    I am employed by a company which provides long term disability insurance.
    And I recently being diagnosis as having a genetic disease which will evantually affect my muscle coordination and cause me to be disable.
    I want to find out if I and my doctor decided when I am disable, and I filed
    for long term disability claim for my company, can I get fired or laid off?

    I am working as a computer engineer. So I have to sit before the computer
    and using my finger to type. This disease is causing me to lose my finger
    coordination so that I type very slow or press the wrong key all the time.

  2. #2
    Join Date
    Nov 2001
    I'm sorry, but no, you can't.

    There is a persistant but erroneous belief that someone who is collecting disability payments cannot be fired. There is no truth to that belief whatsoever. What the law says is that someone who has a disability as defined under the ADA (which is only a small fraction of people collecting disability benefits) cannot be fired BECAUSE they have a disability. As in, "we have to lay someone off; let's let Joe go so we won't have to deal with his ______ (fill in the disability of your choice here)".

    Barring a state law that says otherwise, the maximum length of time an employer is required to provide you for any kind of medical condition is 12 weeks. (No state requires more than 16 weeks to the best of my knowledge.) Once you have been out of work for 12 weeks, if you are unable to return to work, it is legal to terminate your employment regardless of how valid the need to take additional medical leave. There are NO circumstances in which the employer is required by law to extend medical leave beyond 12 weeks. They may offer more time if they choose to, and a union or other contract may provide greater protection, but as far as the law goes, 12 weeks (or the greater amount provided by your state) is the absolute outside. BTW, California does not require any longer than 12 weeks except for pregnancy.

    Even under the ADA, there is no guaranteed job protection.

    A person with an ADA-qualifying disability who finds that their disability is interfering with their job, should first make the employer aware that they need an accomodation. The employer is then required to work with the employee to find a reasonable accomodation to allow them to complete the essential functions of their position. What is considered reasonable will vary with the job duties of the employee and with the resources of the company. However, IF there is no reasonable accomodation that can be provided AND IF there is no open position for which you are qualified which would be within any medical restrictions, again you can be terminated.

    Under no circumstances is the employer required to do any of the following:

    1.) Put you into a position for which you are not qualified
    2.) Bump someone else out of their position in order to put you into it
    3.) Accept a standard of work from you which would be unacceptable in a non-disabled person

    There are other limitations, but these are the appropriate ones based on your question.

  3. #3
    Join Date
    Mar 2002
    I want to find out if I and my doctor decided when I am disable, and I filed
    for long term disability claim for my company, can I get fired or laid off?

    Legally, no. Your employer may take whatever action they would have taken in spite of your medical status. As a matter of internal policy though, they may choose to allow your medical leave/disability status override any internal decisions, at least for the time being.

    If you are laid off or terminated before your are determined to be disabled for purposes of making an LTD claim, it may be too late to do so. Typically, you must be actively at work in order to file a claim for an income protection benefit such as LTD.

    A person, who is nice to you, but rude to a waiter, is not a nice person. (This is very important. Pay attention. It never fails.)
  4. #4
    Join Date
    Jul 2005
    i have been in managment before...companies are leery of terminating someone right after they go on FMLA, medical leave etc. We used to have people who would learn the system and convienetly go on FMLA for a month or 2, while their write ups would begin to drop off.

    If they really want to get you they will get you but I bet you can throw a wrench in the machinery and delay the process.

  5. #5
    Quote Originally Posted by vlau2
    I want to find out if I and my doctor decided when I am disable, and I filed
    for long term disability claim for my company, can I get fired or laid off?
    Can you have it both ways? Aren't you either unable to work or you can and earn your salary as long as possible then apply for the LTD. Just asking because I do not know the answer.

    What is the disease and more ration answers based on the known might be possible?

  6. #6
    Join Date
    Nov 2001
    Here's how it works:

    If you are able to work, you do not qualify for disability.

    If you are unable to work, the employer is not required to hold your position indefinitely. The time will come (in most cases after 12 weeks) when the employer is allowed to cut his losses and hire someone who CAN work.

    Once any state or Federally mandated leave time is exhausted, there are NO circumstances in which you have the guaranteed right of remaining employed and collecting disability too. While an employer MAY hold your job as long as he wants to, he is only REQUIRED to do so for the duration of any state or Federally mandated medical leave, which, as I said, in most cases is 12 weeks.

    Despite the widespread and totally erroneous belief that you cannot be fired while you are collecting disabilty benefits, that is nonetheless a fallacy. No such law exists.

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