Is it legal for your employer to fire you while out on FMLA leave?
The short answer is: it depends. Ultimately, what matters are the timing and reasons your employer uses as the basis for its decision to fire you.
Under the Family and Medical Leave Act (FMLA), employees who work for covered employers (50+ employees for at least 20 weeks of the last 12 months) can choose to take unpaid FMLA leave under certain situations.
Eligible employees can take FMLA leave for, among other reasons:
the birth of a son or daughter, and to bond with the newborn child;
the placement with the employee of a child for adoption or foster care, and to bond with that child;
to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
to take medical leave when the employee is unable to work because of a serious health condition; or
for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
As long as the reasons for terminating an employee are not related to the employee's FMLA leave, then generally an employer can proceed with firing someone who is out on FMLA leave.
Your employer has a right to terminate you or any other employee for reasons unrelated to FMLA leave, especially if termination was going to take place had you not taken your FMLA leave. If your performance would have qualified you for termination before you left on FMLA leave, then your employer may proceed with firing you while you are out on FMLA leave. This is where well documented personnel files can play a big role in supporting the employer's decision and proving that it was unrelated to the FMLA request or leave.
Additionally, being out on FMLA leave won't protect your job from being cut due to regular downsizing efforts of your employer. This includes furloughs and layoffs. So long as these cost cutting measures were going to take place regardless of your FMLA leave status, then your employer may proceed without violating FMLA.
If, on the other hand, your employer chooses to terminate you while you're out on FMLA leave, or shortly after returning, and does so because you exercised your rights under the FMLA, then you will have a case for discrimination and retaliation.
If you feel that you fired because you took your FMLA leave, contact me for a free consultation to discuss your legal options. Let Bretz Legal protect your rights.