Can You Be Terminated While on FMLA Leave

The answer to if an individual can be terminated while on FMLA leave can be a little tricky when you first dig into it. The answer is both yes and no, but it all depends on the circumstances of an employee being terminated in relation to FMLA leave.

Below we will look at the circumstances that surround FMLA leave protections and termination.

And if you have further questions after reading, consider speaking with an FMLA discrimination attorney in Columbus, Ohio about your individual situation.

Note: The following is not legal advice. It is general information meant to inform.

What Is the Family and Medical Leave Act (FMLA)?

The FMLA is a federal level act that entitles employees who are eligible to take job-protected, unpaid leave for family and medical reasons that have been specified. For eligible employees, their health insurance is continued underneath their FMLA leave as if they had not taken leave as well.

The FMLA affords employees twelve week of unpaid leave from employment for a number of reasons including:

  • Caring for a parent, spouse, or child who has a serious health condition
  • The employee has a serious health condition that renders them temporarily unable to do their jobs
  • Caring for a newborn child

Military family leave provisions were also added to the FMLA in 2008.

The FMLA does only apply to certain employers. For example, a private sector employer that has 50 or more employees “in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer” is covered.

Employees do need to provide their employer with a 30 day notice of the medical leave if they are able to or as soon as possible.

And something important to note is that FMLA leave does not have to be taken all at once. It can be used non-consecutively.

Can I Be Terminated While on FMLA Leave?

Since FMLA leave is job-protected, it may be off-putting to hear that an employee can be terminated after taking leave. As previously mentioned, there are certain circumstances in which termination can occur legally.

Employers do still retain the freedom to make their own hiring and firing decisions, as long as they are lawfully made. Situations where an employee can be legally terminated even when talking FMLA leave can include:

  • Being let go for poor work performance – before, after, or during the FMLA leave
  • If an employee failed to apply for FMLA leave approval
  • Misconduct or fraud was committed by the employee

With that in mind, let’s take a look at when an employer cannot terminate an employee.

If an employee is eligible for FMLA leave, they are extended the protection of being able to take and apply for medical leave without being fired. Should an employer fire an employee for requesting FMLA leave or for taking it, this can be considered retaliation.

Retaliation is unlawful and some employers may try to mask their retaliatory decisions behind other reasoning.

If you suspect you have been on the receiving end of retaliation, you may want to reach out to a Columbus FMLA discrimination attorney for assistance.

What Should I Do if I Have Been Terminated?

If you have been terminated for requesting or taking FMLA leave, there are a few steps you can take to help start building your case – including reaching out to an experienced employment attorney in Columbus, Ohio.

  1. Collect any relevant information such as communication, text messages, your employee handbook, your employment contract, and FMLA leave-related paperwork.
  2. Be sure to write out your version of events with as much detail as you can remember.
  3. Try to stay calm. It is a stressful situation to find yourself in but staying calm can help you keep a clear head!
  4. Reach out to a Columbus FMLA discrimination attorney. They can provide you with legal advice and representation that is individual to your case and situation.
Saxton Kaleb
the authorSaxton Kaleb