Can My Employer In Manhattan Fire Me While I Am Out On Medical Leave?
I have noticed a common belief, among both management and workers, that a company in Manhattan, NY, may not lawfully fire a worker who is out on medical leave. This belief is only partially true.
An employee’s right to reinstatement after taking medical leave is not absolute. An employer in Manhattan may terminate an employee, even though the employee has taken or attempted to take medical leave, sick leave, or safe leave, for a legitimate reason independent of a retaliatory or otherwise impermissible motive.
So, too, under federal law, an employee’s right to reinstatement after taking unpaid medical leave has limitations. The regulations implementing the federal Family and Medical Leave Act (the “FMLA”) provide that “An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” 29 C.F.R. § 825.216. Thus, under the FMLA, if the employer denies reinstatement, “the employer must be able to show that [the] employee would not otherwise have been employed at the time reinstatement is requested.” Id. § 825.216
For example:
- While an employee is out on medical leave, the employer downsizes a group of workers, including the individual who has taken leave, unless that individual is selected for the reduction in force (the “R.I.F.”) because he took medical leave, that individual termination is lawful. (Under federal law, the employer has the burden of proving that, even if the individual hadn’t taken medical leave, he would’ve been terminated as part of the R.I.F.)
- While an employee is out on medical leave, the employee’s coworker, in a complaint to the coworker’s supervisor, accuses the employee of having sexually harassed her (before the employee’s leave began). The company conducts an internal investigation of the coworker’s sexual harassment complaint. (Among other steps in this internal inquiry, the company brings the accused employee into the office for an interview with the employer representatives conducting the inquiry.) The company determines that the accused employee did, in fact, sexually harass his coworker. As a result, the company firesthe harasser-employee. Even though the harasser-employee was out on medical leave, the employer’s termination of his employment is lawful.
By contrast, an employer in Manhattan may not fire or in any other manner discriminate against an employee as to his or her employment because the employee has taken or is attempting to take medical leave, sick leave, or safe leave from work.
If you are an executive or a professional in Manhattan or the surrounding borough of Manhattan metro area and you believe that you have been wrongfully terminated or that your employer has failed or refused to permit you to take, or to return to work after taking leave from work, call the borough of Manhattan Wrongful Termination Attorney David S. Rich at (347) 941-0760 today.
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