Can I Be Fired While on FMLA?

  • By:David Bate

The Family Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave for serious health conditions of qualified employees or covered family members. FMLA also offers protection for certain service members and their families, and also protects those with new children by birth, adoption, or foster.  While employees may know FMLA is available to them, it may not be completely clear how or to what extent FMLA protects their job.

Job Protection under FMLA

The general rule is that FMLA protects an eligible worker’s job for up to 12 weeks. An employee who returns to work within a 12 week-period should be restored to work, either in the previous position or in an equivalent position. Equivalent position generally means equivalent pay, benefits, shift and/or location, but restoration to an identical position is not required. FMLA further includes provisions that make it illegal to retaliate or discriminate against an employee for requesting or taking FMLA, including the failure to restore the employee to an equivalent position upon returning to work. FMLA requests and leave should not prompt negative employment actions like demotion, failure to promote, or layoffs.  Any “position eliminations” that are close in time to FMLA requests or leave should be carefully examined to determine whether they are legitimate or merely pretext for getting rid of an employee who has requested or taken FMLA leave.

Limits of FMLA Protection

While FMLA protects employees from termination related to FMLA leave or the request for FMLA leave, it comes as a surprise to most employees that they can be fired before, during, or after FMLA. The key is whether the employee would have been fired regardless of the FMLA. As long as the employer can show a legitimate nondiscriminatory reason for the termination, it may be legal. Timing in FMLA cases can be very significant. For example, if an employee is already in trouble at work for performance (including being on a performance improvement plan, or PIP), has been counseled for workplace issues, or is having conflicts with coworkers or management, taking or requesting FMLA may not save that employee from termination for preexisting problems. Likewise, if an employee’s errors or mistakes happen to come to the attention of the employer while the employee is on leave, the employee may be legally terminated if he or she would have been terminated had they been at work and FMLA had not been in play. Finally, if an employee’s position is eliminated before, during, or after FMLA, the employer may have acted legally. Still, employees should be on the lookout for evidence that their position was not truly eliminated or that the purported restructuring was really just a “reorganization of one.”

If you have questions or concerns about termination or demotion related to FMLA leave, you should seek the help of an experienced attorney,  like an employment or discrimination lawyer Atlanta, GA turns to, as soon as possible.


Thanks to our friends and contributors from Barrett & Farahany LLP for their insight into FMLA and employment law.

Posted in: Uncategorized