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Walking the FMLA Termination Tightrope

The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 weeks of unpaid, job-protected leave in a 12-month period for certain family and medical reasons. These reasons include the birth of a child, the serious health condition of the employee, or taking care of a worker's seriously ill family member.

“Job-protected" means your employer can't fire or retaliate against you for taking such leave. But the FMLA doesn't provide absolute job protection. In certain circumstances, employers can legally terminate employees on FMLA leave. If the reason for firing or laying off is unrelated to the unpaid leave, your employment can be terminated.

This guide explains employment termination under the FMLA.

When FMLA Applies to Your Workplace

While covered employers must comply, the federal law doesn't apply to every workplace. The FMLA only applies to:

  • Private employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year
  • Public employers such as local, state, and federal government agencies, regardless of the number of employees
  • Schools, regardless of the number of employees

If you work for a covered employer, you can take FMLA leave if you worked for your employer for at least one year and at least 1,250 hours.

If these prerequisites are not met, the FMLA doesn't cover the work absence.

FMLA Notice Requirements – Employer

Before an employer can safely terminate an employee for legitimate, non-discriminatory reasons unrelated to the FMLA leave, it's important to comply with the notice requirements under FMLA. Covered employers must tell employees about their rights and obligations under federal law. This includes:

  • Posting notices in a conspicuous place in work areas
  • Including a detailed notice and explanation of FMLA rights in employee handbooks
  • Specifically designating leave as FMLA leave
  • Informing employees that taking leave will count against their bank of available FMLA leave time

An employer's failure to provide notice may excuse the employee's failure to provide notice to the employer of a request for a period of leave under the FMLA.

FMLA Notice Requirements – Employee

Employees also have notice requirements under the FMLA. For example, an employee must provide 30 days' notice or as much notice as is "practicable" before taking an FMLA-covered leave. If you don't provide timely notice, the federal law may not protect the leave.

Terminating Employees Under FMLA

An employer can't fire or otherwise discipline an employee for requesting or taking FMLA leave. The FMLA expressly prohibits retaliation or discrimination against employees exercising their rights under the act. But employees on FMLA leave don't have complete job security. FMLA regulations state that employees on leave have no greater or lesser job protections than those in the workplace.

An employer can legally terminate an employee on FMLA leave if the worker would have been terminated regardless of their leave. An employer may fire an employee on leave if there is a legitimate, nondiscriminatory reason for the action.

The key factor is whether the employer can demonstrate the termination was unrelated to the employee's FMLA leave. For example, if the company is conducting layoffs for financial reasons and terminates an employee on FMLA leave as part of that broader restructuring, it likely doesn't violate the FMLA. So, an employee on FMLA leave may be considered for layoff during a reduction in the workforce, so long as the employee isn't chosen for layoff based on FMLA leave.

But timing can be an issue. Firing a worker shortly after requesting leave or coming back from leave can look suspicious. If an employee is fired within this timeframe, and there is no other justification, courts and federal regulators tend to see retaliation or interference with FMLA rights.

So, employers must carefully determine the circumstances of each firing or layoff. They should ensure that negative employment actions made during or shortly after FMLA leave are not perceived as punitive measures.

Case law provides some examples:

  • If the employer would have terminated an employee regardless of FMLA leave due to poor performance, then the employer may terminate the employee before, during, or after FMLA leave; See Richmond v. Oneok (1997)
  • If an employee fails to meet a corrective action program designed to improve performance before taking leave, the employer may terminate the employee upon their return from FMLA leave; See Hubbard v. Blue Cross Blue Shield Assoc. (1998)

Other reasons that employers may terminate employees who are on FMLA leave include:

  • Infractions or poor performance that come to the employer's attention during the leave
  • Insubordination, fraud, or other prohibited conduct while out on leave

To show why they fired an employee, employers must keep detailed records of the employee's performance.

FMLA Enforcement

You can file complaints over FMLA leave with the U.S. Department of Labor. The Wage and Hour Division (WHD) enforces FMLA violations. If the Labor Department can't resolve violations, it may sue to compel compliance. An employee can also file a private civil lawsuit against an employer for violations. In most instances, you have two years to file your complaint.

The burden of proof is ultimately on the employer. Courts generally uphold the right of employers to terminate employees for legitimate, nondiscriminatory reasons unrelated to the exercise of rights under FMLA. To prove their case, employers need to show the employee would have been let go or laid off even without FMLA leave.

FMLA Penalties

If employers break the law, they have to pay their workers for lost or denied wages. Damages include:

  • Front pay, or compensation for money that might have been earned if reinstated
  • Back pay, or wages, salary, and benefits lost due to the employer's actions
  • Damages (in some instances, courts award double damages)
  • Job reinstatement

Workers eligible for FMLA leave may also be eligible for leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). For example, both federal laws entitle someone with Long COVID to leave.

FMLA Questions? Have an Attorney Help You

If you have questions about your employee rights under the FMLA, including intermittent leave, health benefits, sick leave, and disability leave, you should contact an employment law attorney. An experienced attorney can explain the law and how it applies to your situation. You can start by finding an employment lawyer to answer your questions.

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