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Sunday, September 20, 2015

Is it Legal to Fire an Employee after He Requests Medical Disability Leave?

​Many State and Federal laws cover whether if it is legal for an employer to fire an employee who is out of work due to medical reasons. The Family Medical Leave Act (FMLA) allows employees who are covered under the statute to have 12 weeks of unpaid sick/disability leave if they work for a covered employer. Whether or not the employer is one who must adhere to the FMLA, a “covered employer”, is dependent on a number of statutory factors including the number of employees. Even if the employer is a covered employer, not all employees who work for the employer and go out on medical leave, are “covered” employees who would otherwise be entitled to the 12 weeks of leave. But even if the FMLA does not apply in the case of an individual employee, there are other laws that might apply.

In a matter recently settled,  Vantage Communications, a media firm in Middletown, New Jersey, is paying settlement money to settle a complaint by 16-month employee, who alleged that he was unfairly fired the day after he requested an 8-day disability leave in order to have hip replacement surgery. The employee alleged that he was  discriminated against because of a medical disability. A staff member of the State Division on Civil Rights, which represented him in the case, agreed that his disability status was protected under the law.

An employee can be fired for reasons related to job performance but not for discriminatory reasons. This means that it's illegal to fire an individual because of race, gender, religion, sexual orientation, or because he or she is disabled.

The company in question no longer operates in New Jersey. While it has signed a consent order to pay a settlement to the employee, it reports that its current policy forbids age and disability discrimination. Vantage Communications continues to deny the allegations leveled against it concerning  the employee’s dismissal, stating that it is settling the matter in order to avoid the time and expense of a public hearing.

Nonetheless, the employee’s allegations have been met with a state agency finding of "probable cause." The two sides of this case, not unexpectedly, gave differing versions of the events preceding the  firing. They agreed on this much: the employee was hired as an account manager, working at a base salary plus sales commission. From that point on, the employer’s and employee’s version of the facts  differed.

Vantage officials said that the employee in question was made aware on numerous occasions that he was not meeting sales quotas. They further stated that their decision to fire him was made weeks before he advised them of his upcoming medical procedure, but that he wasn't notified because it was company policy not to give notice of impending dismissals.

On the other hand, a manager who left the company after his first interview with state investigators, corroborated the employee’s contention that none of the sales staff met the company's unrealistic quotas, and that, although the employee had been advised that he wasn't meeting sales quotas, he was never advised that his job was in jeopardy. The former manager further stipulated that to his knowledge no other salesperson had been dismissed without prior warning. Instead, he reported several other salespeople had received written warnings and were placed on probation before being let go.

Disability discrimination is frequently combined with other types of discrimination, such as age discrimination or  pregnancy discrimination. Fortunately, New Jersey has a strong state discrimination statute that prohibits illegal terminations based on discrimination. Unlike many other states that do not have strong state statutes that prohibit such discrimination, Plaintiffs in New Jersey do not have to go through the long process of administrative filing with agencies before they have the right to litigate the case. In New Jersey, persons who believe that rights were violated by illegal terminations can file directly in state court, without having to first go through the long process of exhausting administrative remedies.

This case demonstrates some of the complexities of employment and discrimination law.

In New Jersey, persons suffering from illegal disability discrimination by their employers do not have to jump through the administrative hurdles that are required by the Americans with Disabilities Act. These disability discrimination plaintiff's may file directly under a different statute, The New Jersey Law Against Discrimination,  in State Superior Court.

Hope A. Lang, Attorney at Law, represents employees throughout New Jersey in complex employment discrimination lawsuits. She accepts cases from all counties in Northern, Southern, and Central New Jersey and has locations in central, western and northern New Jersey to meet with clients. If you believe that you have been discriminated against due to gender identity or other protected characteristic, such as age, disability, pregnancy, race, religion, sex, sexual orientation or national origin, or in retaliation for reporting what you believed to be illegal acts of your employer,  she can help you. It is important to know your rights as an employee. 

Contact Hope A. Lang, Attorney at Law, today for a free consultation. 

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