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Beware firing ill employee after FMLA expires

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in Employment Law,Firing,FMLA Guidelines,Human Resources

Employers sometimes have the mistaken belief that employees with serious health conditions who have used up all their FMLA leave can be terminated if they can’t return to work. That’s simply wrong.

In fact, those employees may be entitled to reasonable accommodations—including additional time off—under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law.

And now a state court has ruled that refusing to even consider the possibility of more time off may itself constitute denial of a reasonable accommodation.

Recent case:  Deborah Phillips, who worked for New York City for 18 years, developed breast cancer. She took 12 weeks of FMLA leave to begin treatment and then asked for an additional year of medical leave. The city denied her request, and warned her that if she didn’t return when her FMLA leave expired, she would be terminated.

Phillips responded with a request to start an interactive reasonable accommodations process. The city refused and fired her when she couldn’t return. Since she lost her medical benefits, too, she had to put off further cancer treatments. She sued under the NYSHRL and the city’s version of the law.

The court said her case could go forward, noting “for both state and city HRL purposes, engagement in an interactive process is itself an accommodation, and the failure to so engage is an unlawful failure to make a reasonable accommodation.” Her case was sent back for trial. (Phillips v. City of New York, No. 101127-07-55, Supreme Court of New York, Appellate Division, 2009)

Final note: With health care reform on the legislative agenda, jurors already have health care coverage issues on their minds. Cutting off medical insurance when an employee is seriously ill probably won’t play well.

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