Many people have the impression that it is illegal to be terminated while out on disability. That is not exactly the case in non-union employment in Alabama, Georgia, and Florida.  An employee can be fired for any reason (unless protected by other law) and the employee can quit for any reason.

So what makes a good case? You have to have facts showing a violation of a law protecting against disability discrimination. For example, the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), or the Employee Retirement Income Security Act (ERISA). So to help focus on critical facts needed to reveal a good case, here is a checklist:

A.        For a Case under the ADA, 42 U.S.C. § 12101 et seq, (see, Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255, 11th Cir. 2001) the terminated employee must present facts showing:

1.      Employer generally has 15 or more employees

2.      Disability as defined at 42 U.S.C. §§ 12102(1), (2)(a)

3.      A ‘qualified individual', meaning the employee could perform essential job functions with or without reasonable accommodations

4.      Discriminated against because of his disability

A leave of absence may be a reasonable accommodation, but not if it is indefinite. See, Wood v. Green, 323 F.3d 1309, 1312-14 (11th Cir. 2003). But see, Richio v. Miami-Dade Cnty., 163 F.Supp.2d 1352, 1365 (S.D. Fla. 2001) for an extended but not indefinite leave of absence.

Therefore, if you are permanently disabled or if your disability will leave you unable to work indefinitely then termination despite the ADA is possible.

B.        For a Case under the FMLA, 29 U.S.C. § 2601 et seq., (See, Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010)) the terminated employee must present facts showing: 

1.      Employer generally has 50 or more employees

2.      Serious health condition defined by §2612 of employee's spouse or child or parent or birth of a child or care of newborn child

3.      Entitled to 12 weeks of leave during a 12 month period

4.      Interference by the employer

C.        For a Case under ERISA, 29 U.S.C. § 1140, (See, Clark v. Coats Clark, Inc., 990 F.2d 1217, 1222-23 (11th Cir. 1993)) the terminated employee must show facts noting interference with a right to make or continue a long-term disability claim, short-term disability, or pension disability claim, (as well as any other benefit claim for that matter; however the focus here is on disability):

1.      Exercise of a right for an employee benefit - such as making a disability claim

2.      Interference with receiving that right or benefit or attainment of that right

3.      Specific intent of the employer to interfere with that right

4.      If return to employment was anticipated, such as might be with short or long term disability, then must also show still qualified for the position

“A plaintiff is not required to prove that interference with ERISA rights was the sole reason for the discharge but must show more than the incidental loss of benefits as a result of a discharge.” Clark v. Coats Clark, Inc., 990 F.2d 1217, 1222-23 (11th Cir. 1993). However, a plaintiff who is out on disability permanently or indefinitely is not likely protected.

D.        Retaliation under ERISA, the ADA and the FMLA, (See, Strickland v. Water Works and Sewer Bd., 239 F.3d 1199 (11th Cir. 2001)) generally in addition to the above under each statute, also requires the following:

1.   Engaged in a statutorily protected expression of a claim to one of these rights,

2.   Termination or other adverse employment action,

3.   A causal link between the two.

While there are protections against being terminated while out on disability, there are specific facts that must be demonstrated to have a good case. The above checklists are a starting point.  Significant research is likely to measure whether an employee actually has a good case. Mere termination while out on disability is not enough.