Can I Be Fired While on FMLA?

The Family and Medical Leave Act (FMLA) can be extremely helpful for employees who have personal health issues or are taking care of family members or loved ones with serious health conditions. It not only allows employees to take extended leave for medical reasons, but also gives them job protection at their current employer.

But just how protected is your job when you’re on leave? Can you still be fired while you’re on FMLA?

A Refresher on FMLA Eligibility

The FMLA offers up to 12 weeks of unpaid, job-protected leave for the following qualified reasons:

• To care for a new child (whether it’s birth, adoption, or foster care)
• To care for a seriously ill family member
• To recover from a serious personal illness or injury
• To care for an injured service member, or take care of personal business while a family member is deployed.

In order to be eligible for FMLA, the following requirements must be met:

• The company must employ 50 or more employees within 75 miles.
• The employee must work for their employer for at least 12 months
• The employee must work for their employer at least 1,250 hours over the past 12 months.

The FMLA can be extremely useful to those who legitimately need it – but it can be an extremely tricky topic to tackle, especially when it comes to termination.

Can I Be Terminated While On FMLA?

The job protection mandated by FMLA is, for the most part, solid – there are very few reasons that someone can be terminated while on leave.

The most common reason is if you violate the agreement set forth between you and your employer. The specific terms of your FMLA should clearly state the specific reasons for your leave, including any verification or certification from licensed professionals. Due to the ever-growing concerns of FMLA fraud, some companies may be more strict than others in gathering proof at regular intervals during your leave.

Additionally, you can still be terminated for reasons unrelated to FMLA leave. Common reasons include:

• Infractions, misconduct, or otherwise poor performance prior to leave, that was brought to the employer’s attention while you’re on leave.
• Remaining on leave while employers learn that you’re well enough to come back to work.
• Layoff due to workforce reduction completely unrelated to your intent to take leave

How Can I Protect Myself from Termination While On Leave?

The bottom line is that companies cannot fire you while you are on leave, or for any reasons directly related to leave. However, if a company wants to terminate you, they will unfortunately be able to find any reason to do so, under the guise of poor performance or violation in company policy. Here are some things you can do to minimize your risk of FMLA termination:

• Know that retaliation associated with FMLA is illegal. Retaliation, in this case, refers to a reduction in pay, hours, benefits, a demotion in responsibilities, or termination of your position shortly after returning from leave. FMLA mandates that your exact same job (with same pay, responsibilities, and benefits) is waiting for you when you come back to work.

• An evaluation for workforce reduction must happen (or at the very least be initiated) prior to the start of the employee’s leave. If these discussions happen while the employee is on leave, the employee may have a legitimate retaliation case.

• Keep thorough documentation of your reasons for leave. That includes verification from your doctor, documentation of appointments, prescriptions, therapy, and regimen of treatment.

• Be careful what you post on social media. Employers can leverage that information to determine whether or not you’re fit to come back to work. A recent case in Delaware was ruled in favor of the employer when an employee on leave for shoulder surgery posted pictures on social media of himself on vacation in the Caribbean.

What Do I Do If I’ve Been Fired on Leave?

Ultimately, the FMLA makes it more difficult for employers to terminate employees on leave – but not impossible. The act makes it necessary for employers to provide thorough, exhaustive proof of fireable offenses before formally terminating an employee on leave.

Maintaining thorough documentation is the key to fighting wrongful termination and possible retaliation by the employers. Remember, the ball’s in the employer’s court when it comes to FMLA – it’s up to them to provide strict evidence that is overwhelmingly in their favor.

If you’ve been terminated while on leave and you feel it’s happened under false or unfair pretenses, it may be time to consult an attorney at Florin Gray to see if you have a valid case against your employer.