Lawyer Monthly Publishes Article by Phillips & Associates Attorney on Legal Protections for Employees Taking Sick Leave

Can an employer fire an employee for getting sick? This was the question addressed by Jesse Weinstein, a Litigation Associate at Phillips & Associates, in an article published by Lawyer Monthly online and in its June 2019 print issue. The answer, as with almost any legal question, is that it depends. As an “at-will employment” state, New York law allows employers to fire their employees for any reason, or no reason at all, as long as the decision does not violate laws against discrimination, retaliation, and related practices. Firing an employee because of an illness might violate the law if the employee’s illness is a legally-protected disability, or if the employee is entitled by law to medical leave with employment protection. New York City employment attorneys can choose from multiple statutes, from the local up to the national level, when advocating for their clients’ rights.

The New York City Human Rights Law prohibits discrimination on the basis of disability and defines the term broadly to include “any physical, medical, mental or psychological impairment.” N.Y.C. Admin. Code § 8-102, 8-107(1)(a). Further, the law requires employers to make reasonable accommodations for workers with disabilities, as well as workers who or pregnant or have recently given birth, to allow them to perform their job duties. Id. at §§ 8-107(15), (22). Employers are not obligated to accommodate employees if doing so would pose an undue hardship.

Statewide, the New York State Human Rights Law gives the term “disability” a narrower definition, applying it in part to “physical, mental or medical impairment[s]” that “prevent[] the exercise of a normal bodily function.” N.Y. Exec. L. § 292(21). The statute prohibits discrimination on the basis of disability and requires employers to provide reasonable accommodations except in cases of undue hardship. Id. at §§ 296(1)(a), (3).

Federal law contains the narrowest definition of disability. The Americans with Disabilities Act of 1990 largely limits the definition of the term to “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Employers may not discriminate on the basis of disability, including by failing to provide reasonable accommodations free of undue hardship. Id. at §§ 12112(a), (b)(5)(A).

The federal Family and Medical Leave Act allows qualifying employees of covered employers to take unpaid leave for certain reasons related to their own health or that of a family member. This includes “a serious health condition that makes the employee unable to perform the functions of the[ir] position.” 29 U.S.C. § 2612(a)(1)(D). Employers may not interfere with an employee who is exercising their right to leave under this statute, nor may they discriminate or retaliate against an employee who has exercised those rights. Id. at § 2615(a).

Mr. Weinstein is a 2015 graduate of American University Washington College of Law in Washington, D.C. He served for four years as an Operations Specialist in the United States Navy. Prior to joining Phillips & Associates, he worked for the District Attorney in Bronx County as an Assistant District Attorney. He gained extensive trial, investigation, and litigation experience there.

The employment lawyers at Phillips & Associates advocate on behalf of New York City employees and job applicants in claims for unlawful employment actions under city, state, and federal statutes. Please contact us today online or at (212) 248-7431 to schedule a free and confidential consultation to see how we can assist you.

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