Can You Be Fired While on FMLA? | JGL Law

December 29th, 2021

Yes and no. The Family Medical Leave Act (FMLA) was created to protect employees while on leave due to medical reasons. However, under certain circumstances, an employee can be fired.  Let’s look at what the FMLA is and when you can and cannot be fired while on or returning from medical leave.

What is the FMLA?

The FMLA is a federal, nationwide law that provides employees with twelve weeks of unpaid leave per year. Employers cannot discipline an employee for applying or taking medical leave covered by the FMLA.

FMLA leave is time used to handle a personal medical issue, take care of an immediate family member, take care of a newborn child, newly adopted or a new foster child, take care of pregnancy complications, and for other serious medical necessities. Additional requirements are:

  • The employee must have worked for a total of 12 months for the employer.
  • A minimum of 1,250 hours must be worked by the employee during 12 months immediately preceding the leave.
  • FMLA only applies to companies with 50 or more employees within 75 miles.

The FMLA is a federal law that sets minimum requirements across the country. But, policies regarding unpaid medical leave may vary from state to state. Some states offer greater options and benefits. Special rules apply to education agencies such as schools that may give more flexibility than other employers. Additionally, there are different requirements for military caregiver FMLA.

If you qualify for FMLA medical leave, it provides job-protected leave benefits. This means, when you take FMLA leave, your job (or an equivalent) must be available to you upon your return.

Is It Possible to Be Fired While On FMLA?

  • Yes, it is possible to be fired while on FMLA but an employee cannot be fired for requesting or taking FMLA leave.

An employee cannot be fired for retaliatory reasons for taking or requesting FMLA medical leave. Retaliation occurs when an employee is denied FMLA leave and faces disciplinary action or when an employee comes back from FMLA medical leave to his or her position but suffers adverse actions because of taking leave. An example of retaliation is when the employee is fired for missed work while out on FMLA medical leave.  It’s important to meet with an experienced attorney if you feel you have been wrongfully terminated due to FMLA.

When You Can Be Fired While on FMLA

There is the possibility of being terminated while on or returning from FMLA. Employers can terminate employment due to:

  • The employee failed to apply for FMLA-approved leave.
  • Poor performance from the employee before taking FMLA.
  • There was misconduct or fraud committed by the employee.
  • Evidence that the employee would have been terminated even if FMLA leave had not been taken. For example, a reduction in the workforce that had been documented before taking leave.

An employer with any legitimate, non-discriminatory, and non-retaliatory reason can terminate an employee regardless of their FMLA leave status. Documentation of the facts is always important. If you think your FMLA rights have been violated, the best way to handle the situation is to consult with  a labor and employment attorney.

Call or e-mail us at Joseph, Greenwald & Laake, P.A. to schedule a consultation with an experienced attorney regarding your labor and employment issue or wrongful termination claim. We offer reliable counsel on how best to proceed and what your rights and responsibilities are.

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