Most employment contracts have an at-will clause meaning you can terminate a position at any time for any legal reason. However, one situation that often comes with a cloud of confusion is whether an employee can be terminated while on medical leave.
Medical leave-related termination is a sensitive situation because employees on medical leave receive protection by numerous laws at the federal and state level that you have to consider. But that doesn’t mean you can’t fire an employee because they’re on leave. You do, however, have to ensure you follow the laws, which depend on several factors.
It is not illegal for your employer to lay you off during your FMLA leave, but it is illegal for your employer to lay you off because of your FMLA leave.By
I had abdominal surgery several weeks ago, and Im taking FMLA leave from work. My doctor said I would need eight weeks off, then would be able to work only part time for four more weeks. I just got an email from my manager saying that the company is struggling financially and will have to lay some people off. Our department has to lose two positions, and theres a chance my job might be one of them. Is this legal? I thought the FMLA gave me the right to get my job back when my leave is over.
Answer: It is only illegal to lay off employees BECAUSE they are on FMLA leave.
It is not illegal for your employer to lay you off during your FMLA leave, but it is illegal for your employer to lay you off because of your FMLA leave. In other words, whether your employer can lay you off without legal liability depends on its reasons for doing so.
You are correct that the federal FMLA (Family and Medical Leave Act) gives employees the right to be reinstated once their leave is over. After all, the right to take time off isnt worth much if you dont have a job to return to afterwards.
However, the FMLA doesnt give you any greater right to your job than you would have had if you hadnt taken leave. If you would have lost your job whether or not you took time off, the FMLA doesnt protect you.
In your situation, the company can lay you off while you are on leave as long as it would have made the same decision if you had not used the FMLA. So, if your company decides to lay off the ten employees with the least seniority, and you happen to be one of them, that wouldnt violate the FMLA. Similarly, if your company decided to outsource the functions of your department, and your whole department is laid off, the FMLA would not give you the right to demand your job back anyway.
On the other hand, your company may not lay you off because you took FMLA leave. If, for example, you were not included in the original layoff list, but your manager added you to retaliate against you for taking time off, that would be illegal. Similarly, if the company says it is laying off employees with the least seniority, and you are included in the layoff despite having more seniority than employees who will keep their jobs, that would give you reason to question your employers true motives.
The company also may not use your FMLA leave indirectly as a reason to lay you off. For example, if all employees had to complete a written self-evaluation form for the company to consider in making its layoff list, and you didnt complete a form because you were on leave, it would not be legal for the company to hold that against you. Or, if the company chooses employees for layoff based on a number of performance factors, including attendance, and your FMLA leave is counted against you in this category, that would also be illegal.
As you can see, determining whether your FMLA leave played a role in layoff decisions can be complicated. Youll need to know all the facts behind your employers choices to find out if your termination was illegal. For that, you will definitely need an experienced employment lawyer.
Can an employee be terminated while on FMLA leave?
Whether an employee can be terminated while on medical leave under FMLA depends on several circumstances, so you want to ensure you’re abiding by the rules and regulations anytime there’s an FMLA case.
First, an employee is only eligible for FMLA leave if they meet the following criteria:
Under FMLA, employees are eligible for up to 12 weeks unpaid, job-protected leave each year for conditions such as the birth, adoption, or fostering of a child, to care for a family member with serious health conditions and similar circumstances. During this time, their benefits remain intact.
As long as an employee returns to work within the allotted 12 weeks, you will typically be required to place them in the same position they had or a similar position in terms of rank and pay.
However, if they remain out of work longer than 12 weeks, you can fire them because they are outside FMLA protection. Also, if they violate other rules related to the policy, such as not providing notice of leave, they can be terminated.
Another time when you can terminate an employee on FMLA is when the termination isn’t related to them being on leave.
For example, you can legally terminate an employee due to company layoffs or performance-related issues. You have to prove that they would have been terminated anyway had they not been on leave in these situations.
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