When a disability causes someone to stop working, they may be unsure of their rights to employee protections or insurance benefits. One common question for disabled employees is whether or not the employer can terminate the employee’s job due to a disability. For some employees, they may have limited protection under the Family and Medical Leave Act (FMLA).
Under FMLA, eligible employees can take up to 12 workweeks of unpaid leave a year. FMLA also requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. After the employee has exhausted 12 workweeks in one year, they are entitled to their same or an equivalent job if they are able to return to work. Unfortunately, if the disabled employee is still unable to return to work after exhausting their leave of absence under the FMLA, the employer may legally terminate his or her employment. More details can be found on the Department of Labor’s website.
It is very important to recognize that not all employers are required to provide FMLA protection. FMLA applies to all public agencies (including local, state, and federal employers, and local education agencies) and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. Therefore, if your workplace includes less than 50 employees and your employer is private, you may not receive FMLA protection.
Additionally, employees must satisfy several requirements in order to take an unpaid leave under the FMLA. First, they must work for a covered employer as explained above. Second, they must have worked 1,250 hours during the 12 months prior to the start of leave (with special hours of service rules for airline flight crew members). Third, they must work at a location where the employer has 50 or more employees within 75 miles. And fourth, they must have worked for the employer for 12 months.
If a disabled employee is eligible for FMLA protection, they can apply for an unpaid leave of absence due to a “serious health condition.” The FMLA defines a “serious health condition” at Title 29 of the Code of Federal Regulations §825.113 as a condition involving inpatient care or continuing treatment by a health care provider. In addition, the Department of Labor commented on the meaning of a “serious health condition” in a 1996 opinion letter and stated that “‘eligible employees’ may take leave for, among other reasons, their own serious health conditions that make them unable to perform the essential functions of their position.