Disabilities occur as the result of an accident or illness.  When trauma results in disability, the date of disability can usually be related to the date when the employee suffered an accidental injury. Disability due to illness, especially chronic illness, is more complicated, though. Most employees struggle to remain employed for as long as they can. Often, an employee will seek a leave of absence in the hope that time off from work may relieve symptoms of an illness to a degree.  However, such hopes are not always realized; and if the employee is unable to return to work on account of an illness or injury and their employment is subsequently terminated, is the termination due to the employee’s disability or can it be considered job abandonment?

What Is Job Abandonment?

Failing to show up for work without an excuse and without notifying the employer may constitute job abandonment. Employers have the right to expect that employees show up when they are scheduled to work, and to be notified if the employee is unable to work.

Since the COVID-19 pandemic, the issue has become more complex since many employees now work remotely, and the employer may not be certain whether the employee is working or not unless their work activity is monitored.  However, if the employee fails to perform their assigned work, and has no excuse for not doing so, the employer may deem the absence job abandonment and terminate the employee, which would disqualify the employee from receiving unemployment compensation benefits.

The employee’s failure to show up for work may be due to an illness or an injury, though.  If so, is the employee eligible to receive disability benefits?

Is There a Right to Stay Home Due to a Disability?

Does an employee have the right to stay home if they suffer an injury or illness that prevents them from working? There have been instances where employers have told their employees that it would be considered a job abandonment and termination would result if the employee does not return to work by a certain date.  In such instances, however, the employee may be unable to return to work by that date due to their injury or sickness.  If the employee has unexpired approved leave under the federal Family and Medical Leave Act (FMLA) or under state or local law, the employee would not be abandoning their job by remaining on leave. In addition, if the employer has a short-term disability (STD)  plan, it may be a violation of federal law for the employer to interfere with the employee’s right to receive benefits under an STD plan.  But leaves do not last indefinitely; and when leave expires, employers have the legal right to terminate an employee who has not returned to work regardless of whether the employee is disabled.

In such instances, the employee may still be eligible to continue receiving short-term and long-term disability benefits even if their employment is terminated so long as the disability commenced while the employee was actively employed. Further, even if there is no right to receive short-term disability benefits due to an employment termination, the employee may retain eligibility to receive long-term disability benefits in such situations.  However, each situation is different and requires an individualized analysis.

How Can a Disabled Employee Take Steps to Protect Against an Accusation of Job Abandonment

Employees who are out of work for protracted periods of time for illness, injury, or pregnancy, need to take proactive steps to protect against an accusation of job abandonment.  The two best ways for an employee to obtain protection is to seek either a continuous leave or intermittent leave under the FMLA, the Americans with Disabilities Act, or state or local laws allowing employees to take protected leave to address serious medical conditions or disabilities. The intent of those laws is to give employees time off to receive medical evaluation and treatment to enable them to return to the work force.

To be protected under the FMLA, though, the employee must have worked for the employer for at least 12 months or 1,250 hours in the preceding 12 months, and the company must employ 50 or more employees within 75 miles of the employee’s work location.

The employee needs to take affirmative steps to coordinate with their doctors prior to requesting leave since employees are required to have a physician submit a form certifying the need for leave due to a serious illness.  FMLA leave is also available for employees who need to care for an immediate relative with a serious health condition, or for maternity or paternity leave.

Navigating Legal Complexities

The legal requirements can be complex; and an employee who has been or believes they may be threatened with an accusation of job abandonment should seek legal advice and counsel.  An employee who fails to seek legal advice early on may later be found ineligible for disability benefits and even unemployment compensation benefits.

There are other potential complications as well.  An employee with a medical condition or an injury that would qualify for short-term and/or long-term disability should be wary of seeking unemployment compensation if their employment is terminated because doing so may undermine a subsequent disability claim.  Likewise, an employee who is offered severance should seek legal advice because receipt of severance may disqualify the employee from receiving short-term and long-term disability benefits.  Such issues are all the more reason for an employee to seek legal counsel as early as possible in order to avoid falling into a potential trap.

Understand Your Legal Protections Against Job Abandonment Accusations

 This discussion barely scratches the surface of the potential issues that may arise and how to prevent an issue of job abandonment from arising.  Because every situation is unique, there is no “one size fits all” approach. What is universal, though, is the need for an employee to seek experienced counsel and expert advice to help navigate through these issues and assist the employee in recovering benefits that may be due regardless of whether the employer has asserted a job abandonment.  The lawyers at DeBofsky Law have extensive experience and an established track record of helping employees protect their rights and maximize the benefits they are entitled to receive.

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