Can You be Fired While on FMLA?
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- Can You be Fired While on FMLA?
Know Your Rights - Termination After FMLA Leave Explained
Understand what employers can and can’t do after FMLA leave. Protect your job by knowing your rights.
Many clients have questioned, can you get fired while on FMLA? Unfortunately, when taking leave, fear sometimes sets in and causes employees to worry about the security of their job.
While the Family and Medical Leave Act (FMLA) provides vital protections, there are circumstances where termination may occur during or after FMLA leave. If for some reason the termination was illegal, you have rights and should contact an employment discrimination lawyer for immediate assistance!
This article will break down the rights of employees, answer vital questions such as can I be fired while on FMLA, look at situations where termination is unlawful, and identify steps to take if your rights are violated.
What is the FMLA?
The Family and Medical Leave Act (FMLA) is a federal law enacted in 1993 to ensure eligible employees can take unpaid, job-protected leave for specified family and medical reasons.
The FMLA applies to (private sector) employers with 50 or more employees and allows up to 12 weeks of leave in a 12-month period. It aims to balance the demands of the workplace with the needs of employees to care for themselves or their families without fear of losing their jobs.
Employees’ Rights According to the FMLA
Under the FMLA, employees are entitled to several important rights.
Job Security
One of the most significant protections is job security. Employers are required to reinstate employees to the same or an equivalent position upon their return from FMLA leave, ensuring that taking time off does not jeopardize their career or livelihood.
Continuation of Health Insurance
Another critical right is the continuation of health insurance. Employers must maintain group health insurance coverage during the leave period as if the employee were still actively working. This ensures that employees and their families have uninterrupted access to healthcare during challenging times.
Prohibits Retaliation
The FMLA also strictly prohibits retaliation. Employers cannot take adverse actions against employees for taking or attempting to take FMLA leave. This protection allows employees to exercise their rights without fear of losing their job or facing workplace discrimination. So, to reiterate, can you get fired on FMLA – unfortunately yes! BUT the termination cannot be based on retaliation, or in an effort to undermine employees’ rights.
Clear Communication
Finally, the FMLA ensures that employees have access to clear communication. Employers are obligated to provide detailed information about eligibility and any required documentation, ensuring that employees fully understand their rights and responsibilities under the law.
These provisions collectively safeguard employees from unfair treatment and protect their ability to handle critical life situations without the added stress of job insecurity.
Who Qualifies for FMLA Leave?
Not all employees are eligible for FMLA leave. To qualify, an individual must meet the following criteria:
- Employer Requirements: The employer must have at least 50 employees within a 75-mile radius.
- Length of Employment: The employee must have worked for the employer for at least 12 months.
- Hours Worked: The employee must have worked at least 1,250 hours in the 12 months preceding the leave.
- Qualifying Reasons: FMLA leave is available for specific reasons, including:
- The birth or adoption of a child.
- A serious health condition of the employee or an immediate family member.
- Certain military-related situations.
How Long After FMLA Can You Be Fired?
Legally, employers can terminate employees after FMLA leave ends, but only under specific conditions.
The termination of an employee after FMLA leave ends must not be related to the FMLA leave. For example, if an employee’s position is legitimately eliminated during restructuring, the termination may be lawful. However, firing someone as retaliation for taking FMLA leave is a violation of federal law.
Employers must demonstrate a valid, non-discriminatory reason for termination unrelated to the leave. Any evidence of retaliation or unfair treatment could make the termination unlawful.
What Happens When FMLA Runs Out?
When the 12 weeks of FMLA leave are exhausted, employees no longer have job protection under the FMLA. However, they may have other options:
- Reasonable Accommodations: If the employee’s absence is related to a disability, the Americans with Disabilities Act (ADA) may require the employer to provide additional leave as a reasonable accommodation.
- State Laws: Some states offer extended family or medical leave protections beyond the federal FMLA.
- Communication with Employer: Employees should discuss their situation with their employer to explore additional leave options or accommodations.
Can You Be Fired if FMLA is Denied?
Can you be fired if FMLA is denied? Yes, but not based solely on the fact that your FMLA was denied.
If your FMLA leave request is denied, you can be terminated for failure to report to work unless another type of leave is granted. Employers must provide clear reasons for denial, typically related to eligibility criteria. If an employer denies FMLA leave for a qualified situation, they may be violating the law.
Examples of When Termination After FMLA is Illegal
Can you be terminated while on FMLA? Sure, but is it legal? Probably not. As stated above, you can be fired after FMLA ends, but only in very specific instances.
More often than not, termination after FMLA ends is illegal. Check out some of those examples below.
| Situation | Why Termination is Illegal |
|---|---|
| Fired immediately after notifying employer of FMLA leave | Retaliation for attempting to take protected leave. |
| Terminated while on leave without cause | Employers must provide a legitimate reason unrelated to FMLA. |
| Replaced during leave despite availability to return | Violation of job protection rights under FMLA. |
| Denied reinstatement after FMLA leave | Failure to restore the employee to the same or equivalent position. |
Steps to Take If You Are Fired During or After FMLA
If you believe you were wrongfully terminated during or after FMLA leave, consider taking the following steps:
- Seek Legal Counsel: An experienced employment attorney can assess your case and guide you through filing a claim or pursuing legal action.
- Review Documentation: Collect all records related to your FMLA leave, including approval notices, communication with your employer, and termination documents.
- Consult Your Employer’s Policy: Review your employer’s leave and termination policies to identify any discrepancies or violations.
- File a Complaint: You can file a complaint with the U.S. Department of Labor (DOL) if you believe your FMLA rights were violated.
If You Were Fired During or After FMLA Leave – Contact Us!
If you were terminated during or after taking FMLA leave, you might have legal recourse. At Consumer Attorneys we have experience helping protect employees' rights under the FMLA.
Our consumer protection attorneys can help determine whether your termination was unlawful and work to secure compensation or reinstatement.
Frequently Asked Questions
The FMLA does not guarantee job security indefinitely. Under the FMLA, eligible employees are entitled to up to 12 weeks of unpaid leave within a 12-month period, with the assurance that they can return to the same or an equivalent position. However, this protection applies only during the specified leave period. Once the 12 weeks have been exhausted, employers are no longer obligated to hold the employee’s position. Additionally, if a legitimate business reason unrelated to FMLA arises - such as company downsizing or the elimination of a role - the employee may be terminated, provided the employer would have made the same decision regardless of the FMLA leave.
Yes, your employer can lay you off while you’re on FMLA leave, but only under specific circumstances. If a legitimate, non-discriminatory reason arises, such as a company-wide layoff or the elimination of your position due to restructuring, your employer may proceed with termination. However, the employer must prove that the decision to lay you off would have occurred regardless of your FMLA leave. Terminating an employee solely for taking FMLA leave or as a form of retaliation is illegal. If you suspect your layoff was tied to your leave, you may have grounds to pursue legal action. Document all communication and consider consulting an employment attorney to explore your options.
No, your employer cannot require you to return to work if you are still within your FMLA leave period. The FMLA entitles eligible employees to take up to 12 weeks of unpaid leave to address qualifying medical or family needs without interference from their employer. Employers cannot mandate an early return or penalize you for using your legally entitled leave. However, they can request periodic updates or medical certifications to confirm your need for continued leave. If you exhaust your FMLA leave and are still unable to return to work, your employer may address your absence under other company policies, which could potentially result in termination depending on the circumstances.
Daniel Cohen is the Founder of Consumer Attorneys. Daniel manages the firm’s branding, marketing, client intake and business development efforts. Since 2017, he is a member of the National Association of Consumer Advocates and the National Consumer Law Center. Mr. Cohen is a nationally-recognized practitioner of consumer protection law. He has a we... Read more
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