Can your employer fire you while you are taking time off work under the Family and Medical Leave Act (FMLA)? The answer depends on the reason for the termination. It is illegal for an employer to fire someone because that person took job-protected leave under the FMLA. However, an employer may fire someone for other reasons, even if that person happens to be on FMLA leave.
The FMLA gives eligible employees the right to take unpaid leave for certain medical and caretaking reasons. FMLA leave is job-protected. After all, the right to take time off would have little meaning if you didn’t also have the right to return to your job when your leave is over. The FMLA gives you this reinstatement right. With very few exceptions, employers must restore employees to their old job or to an equivalent job -- that is, one that is nearly identical in every important respect, including pay, assignments, and benefits—when they return from leave. (To learn more, see our article on reinstatement rights under the FMLA.)
The FMLA also prohibits employers from firing, disciplining, or penalizing employees in any other way for taking FMLA leave. This means that employers may not count FMLA leave as an absence in a no-fault attendance policy, for example. Similarly, you may not be fired for low productivity, if your numbers are down solely because you took time off work.
Although you may not be fired because you took FMLA leave, you may be fired while on FMLA leave if you would have lost your job anyway. For example, if your entire department is eliminated while you are on leave, you don’t have a right to keep your job. However, your employer may not target you for layoff because you are on leave. For example, it would be illegal for your employer to include you in a company-wide layoff because your boss didn’t like the fact that you took time off work.
Your employer doesn’t have to reinstate you if you took FMLA leave fraudulently. If you submitted a false medical certification to take time off that you weren’t legally entitled to, for example, you can be fired while on leave. Sometimes, employers claim that an employee took leave fraudulently because the employee was seen engaged in activities incompatible with the need for leave. If you took time off to care for your seriously ill spouse, for example, but then posted photos on Facebook of your European vacation, your employer could argue that you took leave fraudulently. However, appearances can be deceiving. If you legitimately needed leave and your employer is taking something out of context, consult with an employment lawyer right away.
You may be fired for other reasons while on FMLA leave, as long as you are not fired for taking time off or another illegal reason. For example, your employer may fire you for poor performance, misconduct, or other problems unrelated to your leave. Of course, employers don’t often admit to firing an employee for using the FMLA, so they may point to these reasons to hide the fact that they are firing you for illegal reasons. For example, if you’ve always received stellar performance reviews, then were fired for poor performance right after you requested or started your FMLA leave, your employer’s stated reason for terminating you looks pretty suspicious.
However, if you really would have been fired whether or not you took FMLA leave, that doesn’t violate the law. (To learn more about your rights, see our article on common FMLA violations by employers.)
