Can I be fired for excessive absenteeism due to a newly diagnosed disability?

UPDATED: Aug 29, 2011

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Can I be fired for excessive absenteeism due to a newly diagnosed disability?

I work for a non-profit; about 50 employees. I was diagnosed with Multiple Sclerosis 4 months ago after having an exacerbation at work. I was out of work for about a month after a week hospital stay. The neurologist allowed me to return to work full duty on a “trial basis”. Since then, symptoms and side effects from new medications that have caused me to be absent from work. I’m afraid I will be fired because of this as my boss has been verbally unsupportive (ie -How long will this last? You aren’t any good to me if you’re not well”). Do I have any legal rights?

Asked on August 29, 2011 Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You have some legal rights, but they may not be enough to help you:

1) If the company is covered by the Family and Medical Leave Act (FMLA)--which it might be; the basic cut off is 50 employees or more--you may use FMLA leave to take up to 12 weeks of leave per year for medical reasons; that leave may be split up, so it may be a day here and there as you need it; but it is unpaid leave, and once it's all used for the year,  you can't invoke it. Also, you have to specifically say you are taking FMLA leave.

2) A company cannot discriminate against an employee with a disabilty, but not discriminating means only making "reasonable accomodations." Reasonable accomodations are ones which are not too costly, in terms of money or disrupttion, to the employer. If you have been missing many days (and especially if doing so without prior notice or warning) and/or can't do the duties you were hired to do, it may be that it would be unreasonable to expect the company to keep employing you.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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