Can your employer fire you if you are missing workdue tomedical treatment?

My father was recently in the hospital. As a result of his existing Type 1 Diabetes, he will have to be on dialysis for 3 days a week. He qualifies for FMLA and has some vacation time but he doesn’t have enough to cover the treatment period. He is concerned that because he will be missing so many days and it will be at regular periods that they will try and fire him. He is a unionized, a local government employee, and is about 5 years from retirement. If they do try and fire him, is it legal? Is this situation covered by ADA?

Asked on September 20, 2010 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

1) If he qualifies for an uses FMLA, he can't be fired for doing so. Granted, he won't necessarily be paid for  those days, at least unless and to the extent he uses paid leave (FMLA itself is unpaid), but it should protect his job. Note that FMLA leave does not need to be taken all at once.

2) If he is unionized, he should look at his union contract; any terms relating to termination, sick leave, etc. will control.

3) Also, if he works for the government, he may be protected by civil service rules; if so, he needs to reference those, too.

4) As for the ADA--your father should consut with an employment attorney, about the situation generally but this specifically. Certain medical conditions or diseases will bring one under the protection of the ADA, other ones will not. He needs the advice of an experienced employment lawyer who can evaluate all the specifics of his situation.

5) Finally, maybe your father can work something out with his employer. For example, could he do some work on weekends or evenings to make up for missed time? Would it be worth it to maybe go on part time basis, as long as it didn't prevent him from getting a penion? Could he take a pay cut to compensate for being out more, but maintain other benefits? Etc.

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