Can we fire an employee who is out on disability?

We are a non-profit organization with 14 employees. One of our employees has gone on a non-work related disability. She has been out for 4 months. Here in New Jersey, employees can get temporary disability benefits for 6 months, but can we terminate this employee?  We need someone to cover her position.

Posted  08-19-2014

Ann Kiernan replies:

Since your organization is too small to be covered under federal law, let’s look at New Jersey’s requirements.  New Jersey is one of the states (along with New York, California, Hawaii, and Rhode Island) that provides temporary disability benefits to employees who, because of an illness or injury incurred off the job, can’t perform their regular jobs and are under professional medical care. The program is compulsory for all employers covered by the state’s unemployment compensation law and, like unemployment, is funded by contributions from both employers and employees. Job protection is not included in the law.

However, we must also consider the NJ Law against Discrimination, which, like the federal ADA, requires reasonable accommodation—including leaves of absence—to disabled workers, unless the employer can show that it would suffer an undue hardship because of the leave. So, analyze your organization’s situation and see if you have objective, verifiable facts to support an undue hardship claim. For instance, a town was able to show that granting a police officer a six-month leave would be an undue hardship, because it could not reallocate the cop’s job duties among its small staff of 15 to 22 police officers. Epps v. City of Pine Lawn, 353 F. 3d 588 (8th Cir. 2003). In another case, an assisted living facility was able to demonstrate that it would suffer undue hardship if a nurse remained out on leave for an additional six weeks, by showing that it had already spent $8,000 in additional staffing costs for temporary overnight nurses, and that staffing inconsistency could create an unacceptable level of care, as well as fatigue to other nurses on its small staff. Comfort Attiogbe-Tay v. SE Rolling Hills LLC, 2013 U.S. Dist. LEXIS 159598 (D. Minn. Nov. 7, 2013). And in Henry v. United Bank, 686 F.3d 50 (1st Cir. 2012) a bank documented that a commercial credit analyst’s continued absence created an undue hardship. It showed that 2 other credit analysts and a supervisor had taken on the extra work, which in turned strained the department; that no other employee in the bank was available to temporarily fill the analyst position; that hiring a temp was not appropriate, due to the confidential nature of the client information and the particularized training required; that analysts’ loan review responsibilities were expected to increase because the poor state of the economy had created a need for increased financial documentation when scrutinizing credit-worthiness; and, that the Bank was expecting an increase in new loans, creating further stress on a short-handed staff.

As always, talk to a local employment lawyer for further guidance. Good luck.


Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:38+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.