Corona Del Mar, CA asked in Employment Law and Employment Discrimination for California

Q: Can I be laid off while on disability?

I was injured (non workers comp), and then furloughed due to the COVID pandemic. I'm still currently on disability and my employer has now laid me off. Does my employer have the right to lay me off while I'm on disability?

2 Lawyer Answers
Daniel A. Thompson
Daniel A. Thompson
PREMIUM
Answered
  • Employment Law Lawyer
  • Temecula , CA
  • Licensed in California

A: In California, covered employers are required to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons, such as an employee’s serious health condition. However, the Americans with Disabilities Act (“ADA”) and workers’ compensation laws create additional obligations to “reasonably accommodate” the employee’s disability.

Still, the ADA does not require an employer to ignore business realities. An employer is not required to make an accommodation if it would impose an “undue hardship” on the operation of the employer’s business. “Undue hardship” is defined as an action requiring significant difficulty or expense when considering several factors, including the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation.

The other aspect of this analysis is COVID. If the employer was laying off all staff and closing, then there would be not job to return to after your disability.

Louis George Fazzi agrees with this answer

Maurice Mandel II
Maurice Mandel II
Answered
  • Employment Law Lawyer
  • Newport Beach, CA
  • Licensed in California

A: Very sorry to hear about your situation. Suggest you start a job search right away while everything else runs its course. The fact that you are off work because you are temporarily disabled (I assume you are not permanently disabled because then you would not be going back to work at all) does not AUTOMATICALLY provide you with a "safe harbor" meaning it does not prevent your employer from taking any action it would take whether you were disabled or not. However, there are laws that protect individuals with certain types of disabilities from being fired BECAUSE OF THE DISABILITY. There is a great gap between those two concepts.

You have to be a "Qualified physically disabled individual" meaning that the disability has to be serious but not so bad that you cannot work if you get a "reasonable accommodation" which would allow you to work. If you sprained your ankle playing Basketball or broke an arm skateboarding, this is not usually the kind of temporary disability that will be covered under the ADA or California law. Too short term. You never described your disability.

You were already out on furlough, so the CV situation adds to the problem.

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