Can I Be Fired While on FMLA-Approved Leave?

When you take leave under the Family and Medical Leave Act (FMLA) for personal illness, a family medical emergency, or childbirth, you might be concerned about your job security. Losing your job while on leave could cause major financial strains and worsen a stressful time. Learn what rights you have under the FMLA, when termination during FMLA might be justified, and what to do if you think your rights have been violated.

What is FMLA leave?

The Family and Medical Leave Act, or FMLA, is a federal law giving eligible employees the right to take up to 12 weeks of unpaid, job-protected leave per year for specific family and medical reasons. During this time, your job is generally protected, which means you should be able to return to your position – or an equivalent one – when you return from leave.

FMLA leave covers several situations, including:

• Recovering from a serious health condition
• Caring for a spouse, child, or parent with a serious health condition
• Bonding with a newborn, adopted or foster child
• Handling specific situations related to a family member’s military service

Remember, FMLA leave is unpaid, although you can sometimes use vacation or sick time to cover part of your leave. Additionally, your employer may require you to use vacation or paid time off as part of your leave. To be eligible for FMLA leave, you must work for a company with 50 or more employees and have been at your job for at least 12 months (these months don’t have to be consecutive). You must also have worked at least 1,250 hours in the 12 months before your leave starts.

Is it ever legal to fire someone on FMLA leave?

The FMLA offers strong protection for employees but doesn’t give absolute immunity from termination. If there’s a legitimate and non-discriminatory reason for your employer to terminate you, being on FMLA leave doesn’t prevent your employer from firing you.

Common legal reasons for firing someone on FMLA leave might include the following:

• If your employer is laying off employees due to restructuring or financial difficulties, you may still lose your job even if you’re on FMLA leave.
• If your performance before you went on leave was documented as unsatisfactory or if you violated company policies, your employer could argue that your termination would have happened even if you hadn’t taken FMLA leave.
• Sometimes, companies reorganize and remove certain positions altogether. If your position is eliminated across the board and not just for you, this could also be a legitimate reason for termination.

In cases like these, your company must have documentation showing that your termination was part of a broader action unrelated to your leave. Otherwise, firing someone specifically because they’re on FMLA leave is considered interference or retaliation, and it’s illegal.

If you’re fired for reasons directly related to your FMLA leave, it could fall under “FMLA interference” or “FMLA retaliation,” both of which are prohibited by law. FMLA interference happens when an employer interferes with your right to take FMLA leave. For example, if they discourage you from taking leave or deny you the chance to return to work, it’s interference. FMLA retaliation occurs if your employer fires you, demotes you, or punishes you for taking FMLA leave. Say your manager warns you that taking leave might affect your chances of promotion. If you take leave and then are fired or denied a promotion, this could be considered retaliation.

In both cases, your employer would break the law by penalizing you for exercising your rights under the FMLA or for attempting to do so. If you suspect interference or retaliation, it’s important to gather any evidence you have to support your claim and consider speaking to the Atlanta employment law attorneys at Buckley Bala Wilson Mew.

What to do if you’re facing termination while on FMLA leave

If you find out that your employer plans to terminate your employment while on FMLA leave, here are a few steps to consider:

• Request any paperwork or documentation related to your termination. If your employer claims that the decision was based on your performance or company-wide layoffs, they should be able to prove it was planned before you took your leave.
• Write down everything you remember, including dates, conversations, and any actions that might suggest your leave was a factor in your termination. Save any emails or messages related to your leave and your job performance.
• Ask for a copy of your employee file, including any documented reviews or feedback. Look for anything that might suggest your employer’s justification for termination wasn’t raised before you took leave. Keep in mind, however, that in Georgia, there is no law that requires a private employer to provide you with your full employment file.
• The experienced Atlanta employment law attorneys at Buckley Bala Wilson Mew can review your case, help you understand your rights, and determine whether you have a potential FMLA claim.

How to file a complaint for FMLA violations

If you believe you’ve been wrongfully terminated while on FMLA leave, you have the right to file a complaint. The U.S. Department of Labor Wage & Hour Division (DOL) oversees FMLA claims, and you can file a complaint directly with them, although you are not required to do so.

Filing a complaint involves several steps:

• Collect documents and evidence that support your claim, like termination letters, emails, performance reviews, or anything else relevant to your case.
• You can submit your complaint online through the Department of Labor’s website or in person at a local DOL office.
• The DOL may investigate your claim, speak with your employer, and gather more evidence. This process can take some time, so be prepared to wait.

You may also decide to file a lawsuit against your employer. Our Atlanta FMLA attorneys can help you pursue damages for lost wages, emotional distress, and other losses related to your wrongful termination.

How do I prove FMLA retaliation?

To demonstrate that your employer fired you because of your FMLA leave, you’ll need to show a few things, including that:

• You were eligible for FMLA leave. To qualify, you must meet the eligibility requirements, such as working for a qualifying employer and having worked the necessary number of hours.
• You were on approved FMLA leave. Your leave should have been approved, and you should have followed all the proper procedures for notifying your employer.
• The termination was related to your leave. This is often the most difficult part to prove. You’ll need evidence that your leave was a factor in the decision to terminate you – whether through direct statements, timing, patterns in your employer’s behavior, or other evidence.

How to protect your rights when on FMLA leave

FMLA leave does offer valuable protections, but it’s essential to understand how to defend your rights. If you’re on FMLA leave or are planning on taking it, here are a few tips to help protect yourself:

• Save copies of all communications with your employer about your leave, including any emails or forms.
• Make sure you give proper notice and complete any necessary forms for FMLA leave. Following the rules helps establish that you comply with FMLA requirements, making it more difficult for your employer to justify any disciplinary action.
• While you’re not required to check in constantly, keeping lines of communication with your employer open can be helpful. It shows you’re committed to returning to work once your leave ends.
• If you’re concerned about your rights, don’t hesitate to reach out to an Atlanta FMLA attorney. We can provide guidance on protecting your job while you’re on FMLA leave and represent you if any issues arise.

Remember, as long as you are eligible and otherwise qualify, taking FMLA leave is your right as an employee, and you shouldn’t have to worry about losing your job. If your employer tries to interfere with your leave or retaliate against you, understand that the law is on your side.

If you believe your rights have been violated or are concerned about job security while on FMLA leave, don’t wait — reach out now for support. The skilled Atlanta employment law attorneys at Buckley Bala Wilson Mew can help you understand your options, protect your rights, and stand up against wrongful termination. Let us work with you to secure the job protection you deserve under the FMLA. Call or fill out our contact form to schedule a confidential consultation today.