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What To Do If You Are Fired While on FMLA Leave

Posted by Kathy Harrington-Sullivan | Jan 09, 2019 | 0 Comments

When you are facing a serious illness or injury, or if a loved one is experiencing a distressing medical issue, you don't need anything else to worry about. The situation is stressful enough without worrying about your job and whether or not it will be there when you are able to return to work. The potential threat of termination or demotion is too much to bear in circumstances that are already filled with stress. Luckily, the Family and Medical Leave Act (FMLA) offers employees rights and protections when they need to take leave for a qualifying situation. But some who request FMLA leave still worry about the possibility of being fired. Can an employer fire you while on FMLA leave? What should you do if you are fired while you are on FMLA leave? If you request FMLA leave are you completely protected from demotion and termination?

The answer is yes in many, but not all, cases. The FMLA mandates that employers must hold an employee's job for the duration of their FMLA leave as long as they are on leave for a covered event. They are also required to maintain the employee's benefits for the entire 12-week leave time period.

Workers covered by the FMLA are entitled to 12 weeks of unpaid leave for qualifying events such as:

  • The birth of their child
  • Fostering or adopting a child
  • Caring for an immediate family member (i.e. spouse, parent or child) who is facing a serious medical condition
  • Recovering or seeking treatment for a serious health condition
  • Certain qualifying exigencies that affect an immediate family member who is in the Armed Forces

There are certain exemptions that would enable an employer to fire an employee while on FMLA leave. An employee on FMLA leave may be terminated from their position if the reason for their termination is completely unrelated to the employee's absence from work. For example, if the company conducted a workforce reduction while the employee was on FMLA leave and employees were selected for layoffs due to performance evaluations that were conducted prior to the employee taking leave, the employer could legally terminate their employment even though they were on FMLA leave.

If that same situation occurred, but the performance review that led to the layoff was conducted during the course of the FMLA leave, the termination might not be legal. An employer may terminate an employee on FMLA leave based on poor performance or violations, but usually only if they occurred prior to the leave.

An employee on FMLA leave may also be terminated if they engage in fraud, insubordination, or any type of banned conduct while on leave.

If you believe that you have been wrongfully terminated or you are facing demotion due to FMLA leave, please get in touch with one of the experienced FMLA attorneys at Barrett & Farahany today.

About the Author

Kathy Harrington-Sullivan

Kathy Harrington Sullivan is a Partner at Barrett & Farahany and manages the firm's case evaluation team. Because knowledge truly is power, Kathy and the Atlanta employment attorneys on her team regularly consult with and empower potentia...

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