The Law Offices of Neal Brickman, P.C.
P 646-835-0890

Can you be terminated while on FMLA?

There may come a time when you need to take a leave from work. Perhaps you are suffering from an illness or injury and need an extensive recovery time. Or maybe you just adopted a child and are taking a leave while going through the adjustment and bonding period. Regardless of the reason, you may be considering taking time away from work, with the expectation that you will have a job to return to.

Since the enactment of the Family Medical Leave Act (FMLA) in 1993, eligible employees are able to take up to 12 weeks of unpaid leave for specific family and medical reasons. Under FMLA, the employer must keep the job open for the employee so they have a job when they are returning from the leave.

However, even if FLMA leave is job protected, employees are not ineligible for termination while on leave, if the employer has a valid reason for the termination. The employer must prove grounds for termination that are unrelated to the employee taking leave.

Valid reasons for termination:

  • Ongoing performance issues: An employer can terminate you if they can prove recurring instances of inadequate performance.
  • Insubordination: You can be terminated for failing to follow a direct order.
  • Downsizing: An employer can terminate your employment when downsizing if the process was already starting before you took the leave.
  • Poor attendance: While you are allowed to take a leave, if your attendance was suffering before the leave, such as repeat tardiness, an employer can terminate you for violating an attendance policy.

The bottom line is that if you were not performing well at your job before you took the leave, an employer may lawfully terminate you. However, the termination cannot be at all related to taking the leave.

Losing your job during an already stressful point in your life can feel like you are at the end of your rope. If you feel your termination was in retaliation to taking an FMLA leave, you may have legal recourse.

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