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Can you be fired while out on sick leave?

Is it illegal for an employer to fire you while you're sidelined from the job due to an illness or injury?

Unfortunately, no. At least, not exactly. Your disability doesn't protect you against all causes for termination.

Generally speaking, your employer can let you go for any reason that isn't discriminatory. In other words, your employer has the right to fire you for reasons that are unrelated to your illness or injury (and unrelated to any other protected issue) -- even while you're on medical leave.

For example, imagine that you are out on leave due to an illness or injury when your employer downsizes and eliminates your entire department. They are now outsourcing that work overseas. In that case, your termination probably has nothing to do with disability discrimination.

You can also be fired if there was something seriously wrong with your work. If, in your absence, your employer discovers serious irregularities or violations of company policy, that could be a legitimate cause to terminate you.

For example, if you are out on sick leave when your employer discovers that you were falsifying the office time sheets to avoid paying overtime, that would be a valid reason to terminate your employment.

On the other hand, if you are out on sick leave and your employer suddenly decides that you were a bad employee, you might very well be the victim of disability discrimination. If so, you'd have a good case for a wrongful termination lawsuit.

The court would have to look at the specific circumstances of your case in order to determine if the firing was legitimately motivated -- or just a reaction to your request for leave. The timing of your employer's actions may affect your case quite a bit.

For example, imagine that you had always had good performance reviews in the past. Shortly after you get sick and start using your leave, your employer gives you a negative performance review based on nothing specific -- just subjective comments like "poor attitude," or "inability to work with a team." You are then abruptly terminated two days after you go on leave. The odds are high that you're experiencing disability discrimination.

Of course, most cases of disability discrimination aren't that obvious, so it's usually wise to discuss your suspicions -- and your evidence -- with an attorney who can advise you of your options.

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