Can my employer terminate me while I am on FMLA leave?

Facing a severe illness, injury, or family medical issue is stressful enough without the potential for termination or demotion also weighing on your mind. Fortunately, the Family and Medical Leave Act (FMLA) provides rights and protections to employees who are required to take leave for a qualifying illness or injury.

If the employee requests leave, is she completely protected from termination or demotion?

In most cases, yes, an employee who requests leave under the FMLA is protected from termination or demotion. The FMLA mandates that an employer must hold the employee’s job for the duration of the leave, as well as maintain the employee’s benefits for the entire 12-week period, provided the employee is on leave for a covered event.

A covered worker is entitled to 12 weeks of unpaid leave for any of the following events.

• The birth of a son or daughter
• Fostering or adopting a child
• Caring for an immediate family member (spouse, child, or parent, not in-laws) facing a serious health condition
• To recover or seek treatment for a personal serious health condition
• For qualifying exigencies affecting an immediate family member in the Armed Forces

However, there are exceptions that would allow an employer to terminate an employee even while she is on FMLA leave.

What are exceptions that would allow for termination during FMLA-leave?

An employer may terminate an employee on FMLA leave, provided the reason for the termination is completely unrelated to the employee’s absence from work. In one case, the Kmart Corporation terminated an employee who was on medical leave due to a “workforce reduction.” According to the employer, the layoffs were conducted entirely based on employees’ performance evaluations – and the employer gave the employee a low review prior to the termination.

However, further review found that the employer gave the poor evaluation while the employee was absent due to FMLA-approved leave, and the employee had received an “excellent” evaluation just four weeks prior. In the end, the court concluded that the employer terminated the employee for exercising her rights under the FMLA, and required the employer to reinstate her to her position.

An employer may also terminate an employee on FMLA leave if it finds that the employee engaged in insubordination, fraud, or other banned conduct during their leave. Further, an employer may terminate an employee taking FMLA leave if they find out about prior poor performance or violations while the employee is on leave.

Contact an FMLA attorney today.

Disputes regarding an employee’s termination while on leave are not uncommon. An employer may claim they acted within the law in terminating or demoting an employee, while the employee may claim the termination was unlawful and due solely to the exercise of leave. Thus, careful evidence gathering and legal argument is important in FMLA cases.

If you believe your employer wrongfully terminated you or you are facing imminent demotion due to medical leave or a family medical issue, call an FMLA attorney at Robert A. Klingler Co., L.P.A. at 513-665-9500 or fill out our online contact form to request a consultation today.