One of the most common claims that I have been dealing with during the past 20+ years as an employment law attorney involves an employee who is fired while out sick or on disability. The purpose of this article is to help you maximize your efforts to stay employed while ill or disabled.
1. Know Company Sick/Disability Polices. Many if not most companies situated in New Jersey have distributed employment handbooks to their employees. It is of vital importance for a chronically ill or disabled worker to know and understand these polices. Unscrupulous companies, naturally predisposed to terminate employees who become sick or disabled, will look for violations of these polices as an excuse to terminate their employment. Example: Many companies will fire an employee for job abandonment if he or she does not return to work, or provide a doctor’s note, after being out for three consecutive business days.
2. Stay In Contact With Work. Make sure that you stay in contact with your supervisor or Human Resources (HR) about your being out sick or on a disability leave. Your employment handbook will usually tell you who to contact. Document oral communications that you have with management or HR by confirming the conversations in writing (emails or texts) and be sure to preserve these communications. Also, keep in regular contact with trustworthy co-workers regarding developments in your department or for comments being made about you during your absence. Communicate your desire to management or HR that you want your illness or disability to remain confidential.
3. Act Consistently With Illness or Disability. During your period of illness or disability, do not openly communicate via online social media venues or email regarding your daily status updates. Likewise, do not engage in any activity that could be seen to be inconsistent with being out with an illness or disability. For example, employers are increasingly checking social media pages to find out whether sick or disabled employees are “stealing time” while out of work. Innocent positive daily updates can be taken out of context and used to raise accusations of fraudulent use of sick time or disability leave.
4. Stay In Contact With Your Treating Physician(s). Make sure that your treating health care providers have communicated all necessary documentation of your illness/disability to your employer. Any back-to-work notes should be extended before the prior note expires. All forms provided by your company to your physician should be promptly filled out and returned. Ask your doctor’s office to please secure and preserve a copy of the fax transmittal sheet of any note, letter or report that is being sent to your employer. If you get a copy of a doctor’s note, fax or scan and email it as an attachment to the appropriate person designated to accept physician notes at your company. Unless true, your doctor should not state that your illness is of indefinite duration as this could lead to termination of employment in the case of a serious debilitating illness.
5. Know and Exercise Your Rights. Consult with an experienced employment law attorney. Learn which laws provide you with job protection, protect you from retaliation, prohibit acts of discrimination against you due to your illness and/or disability and may provide income for you while you are out. These laws include the New Jersey Law Against Discrimination, the Federal Medical and Family Leave Act, the New Jersey Family Leave Act, New Jersey Worker’s Compensation Statute, New Jersey Temporary Disability Benefits Law and New Jersey Family Leave Insurance. You will need to apply for benefits and protection under these laws, fill out the necessary paperwork and stay up to date regarding the various deadlines set forth in these laws. If you need to stay out beyond the time limit of your statutory leave, then make sure that you communicate requests for reasonable accommodations to your employer prior to the expiration of your leave.
6. Follow Rules For Returning To Work. Review your employment handbook or ask management or HR about instructions regarding your return back to work after your sickness or disability. Your employer may require your medical doctor to write a note advising that you are able to return back to work without restrictions. Alternatively, your employer may direct you to attend a fitness for duty examination prior to your return. You must comply with all lawful requests. Courts in New Jersey recognize that under certain circumstances, an employer has the right to demand a fitness for duty examination. If you have a concern about this issue, then you should meet with an experienced employment law attorney for guidance on this issue.