Can You Be Fired While on FMLA Leave?

Introduction

FMLA provides job protection—but it's not a shield against all termination. In certain situations, employers can legally terminate you even while you're on leave. Here's what you need to know.

When Termination IS Legal

### 1. You Would Have Been Fired Anyway If your employer can prove they would have terminated you regardless of your leave: - Layoffs affecting your position - Performance issues documented before leave - Misconduct discovered during leave - Position elimination for business reasons

**Key:** The decision must be independent of your FMLA leave.

### 2. You're Not Eligible for FMLA If you don't meet eligibility requirements (12 months, 1250 hours, 50 employees), you don't have FMLA protection.

### 3. You Committed Fraud If you obtained FMLA leave fraudulently: - Misrepresenting your medical condition - Using leave for purposes other than stated - Providing false information on certification

### 4. You Didn't Follow Proper Procedures - Failed to provide required notice - Didn't return certification within 15 days - Didn't respond to legitimate recertification requests

When Termination IS Illegal

### Pure Retaliation Firing you specifically because you took or requested FMLA leave.

**Examples:** - "We can't have employees who take months off" - Termination immediately after returning from leave - Replacing you with someone who "won't need leave"

### Pretextual Termination Using a legitimate-sounding reason to disguise retaliation.

**Warning signs:** - Sudden performance issues after years of good reviews - "Restructuring" that only affects FMLA users - Different treatment than others in similar situations

How Courts Evaluate FMLA Cases

Judges look for: - **Timing:** Were you fired close to leave request/return? - **Pattern:** Have others been treated differently? - **Documentation:** Was the "reason" documented before leave? - **Consistency:** Does the explanation match employer's usual practices?

What to Do If Terminated

### Step 1: Get It in Writing Request written explanation of termination reason.

### Step 2: Review Your Documentation Compare the stated reason to your records.

### Step 3: File for Unemployment You may be entitled even if fired.

### Step 4: Consult an Attorney Many offer free consultations for FMLA cases.

### Step 5: Consider Filing a Complaint DOL, Wage and Hour Division accepts FMLA complaints.

Conclusion

FMLA is powerful protection, but it's not absolute. If you're terminated during leave, evaluate whether the reason is legitimate or pretextual. Document everything and seek legal guidance if needed.

*LEGAL DISCLAIMER: The information provided on this website is for general informational purposes only and is not intended to be legal advice. Nothing on this site should be taken as legal advice for any individual case or situation. Consult with a qualified employment attorney for guidance specific to your circumstances.*