Protecting Your Rights.

Disability and Leave

The federal Americans with Disabilities Act (ADA), as well as the New York State and New York City human rights laws, protect employees who need an accommodation because of a physical or mental disability, and requires employers to allow time away from work to recover, or to care for close family members. In addition, while pregnancy is not necessarily a “disability,” pregnant women often face discrimination, with people assuming that they are weak, unwilling, or unable to continue working.

Disability Discrimination

The legal definition of “disability” that an employer must accommodate is quite broad. Disabilities are not limited to physical maladies, but include mental impairments such as depression and post-traumatic stress disorder. Under New York State and City law, the disability need not be permanent.

When an employee suffers from such a disability, the employer is required to engage in an “interactive process” with their employees to determine what kind of a job accommodation would be reasonable. That means that employers can’t simply say “no” to a request for an accommodation, they are required to engage the employee in a dialogue about what accommodations are needed and how best to achieve them. The employees, also, are required to engage in the interactive process in good faith.

When an employee suffers from a disability, the employer can’t say “no” to a request for an accommodation. They are required by law to engage in the dialog with the employee about what accommodations are needed and how to achieve them.

Some employees who have medical conditions aren’t actually “disabled,” in the sense that their condition may not actually affect their work at all. However, some employers are quick to jump to conclusions, and may discriminate against an employee based on stereotypes about the medical condition. Employers are not allowed to discriminate against people they “regard as” disabled, and people who are wrongfully presumed to have a disabling medical condition are still protected under the ADA and New York State and New York City law.

Finally, some people are simply prejudiced against people with disabilities. The law protects people against disability-based harassment and hostile work environments.

Results

  • $1,350,000 for a legally blind clinical psychologist who had created his own way of memorializing his therapy sessions with the help of a volunteer assistant, and was admirably performing his job despite his disability and the hostility of a new supervisor. He was fired after treating patients for 23 years based on his supervisor’s mistaken belief that he was unable to do his job because of his disability. After a successful eight-day arbitration and litigation in federal court, we obtained a settlement of $1.35 million for this client.

  • $555,000 settlement for a dentist who was fired after working for NYC Health and Hospitals Corp. for over 20 years because he had the Hepatitis C virus. We sued brought the case in federal court and alleged that Dr. S was terminated because the City “regarded” him as disabled. The “regarded as” prong of the federal, state and city laws protects employees from being stereotyped as unable to work when, despite their perceived illness, they can perform the essential functions of their job.

  • 8 months of severance pay for non-profit employee who was unlawfully denied a reasonable accommodation to her asthma after the employer forced her to work in a location with low air quality. The case settled without a lawsuit being filed.

  • $95,000 for a law firm paralegal who was pushed out of the firm after receiving a cancer diagnosis. The case settled without a lawsuit being filed.

Leaves of Absence

A leave of absence from work is a common example of a reasonable accommodation of a disability under the ADA and New York law. In addition, many employees are entitled to up to 12 weeks of unpaid medical leave to care for their own serious medical condition, that of a close relative, or to care for a newborn or adopted child. The law that governs this leave is called the “Family Medical Leave Act” (FMLA).

The FMLA protects individuals who work for a company with over 50 employees, who have worked for the company for at least 12 months, and who have worked at least 1,250 hours during the 12 months just before the leave.

In addition, the New York Paid Family Leave law gives employees of private companies, and some public employees, the right to 12 weeks of leave to care for a sick relative, care for a newborn or adopted child, or to care for a military member’s child while on deployment. The New York law also gives employees the right to two-thirds of their average weekly salary while on leave, up to $971.61 per week, and also protects recipients from retaliation. Finally, New York City law requires employers with 5-100 employees to provide up to 40 hours of paid sick leave per year, and for employers with greater than 100 employees to provide up to 56 hours of paid sick leave per year, depending on the employee’s length of service. The New York City sick leave law also grants leave to victims of domestic violence, stalking, unwanted sexual contact, human trafficking to take actions to protect themselves.

Of course, many employers are loathe to allow their employees to take the time they need and to which they are entitled. Wrongfully denying an employee the ability to take their leave, or making it unreasonably difficult for them to take the leave constitutes “interfering” with an employee’s FMLA rights, and is illegal. We have represented numerous employees who have been wrongfully denied their FMLA rights or whose FMLA rights have been interfered with.

We have also represented employees who have faced retaliation for attempting to take their lawful FMLA leave. Some employees are simply fired as soon as they request the leave or shortly after they return, often under the guise of “bad” performance. For example, in a case litigated by this firm, an employer asked the employee to delay his leave. The employee agreed, though of course he was suffering a serious medical condition. His condition caused him to be late once and to miss a single day of work. His employers fired him immediately, preventing him from taking his leave. Other employers retaliate by giving the employee a substantially worse position or shift when they return from leave, which is generally not allowed under the law.

or call us (212) 509-1616