Can You Be Terminated While on FMLA?
The short answer is: generally, no, you cannot be terminated while on FMLA leave. The Family and Medical Leave Act (FMLA) protects eligible employees from job loss due to taking leave for specific reasons, including serious health conditions, the birth or adoption of a child, or caring for a family member with a serious health condition. However, there are some important exceptions and nuances to understand.
This article will delve into the specifics, addressing common questions and concerns surrounding FMLA termination.
What is FMLA?
Before we explore termination, let's briefly define FMLA. The FMLA is a federal law that allows eligible employees to take unpaid, job-protected leave for specified family and medical reasons. Eligibility typically involves working for a covered employer for at least 12 months and having worked at least 1,250 hours during the previous 12 months. The employer must also have 50 or more employees within a 75-mile radius.
Can an employer fire you for taking FMLA leave?
No, an employer generally cannot fire you for taking FMLA leave. This is a core protection offered by the Act. Retaliation for taking FMLA leave is illegal. If an employer terminates an employee's employment solely because they are utilizing their FMLA rights, the employee may have grounds for a lawsuit.
What are the exceptions to FMLA protection?
While FMLA offers significant protection, there are exceptions. An employer can terminate an employee on FMLA leave under certain circumstances:
- Employer closes down: If the employer closes its entire business or the specific department where the employee works, the termination is not considered FMLA retaliation. This is a legitimate business reason unrelated to the employee's leave.
- Employee's position is eliminated: Similarly, if the employee's specific job is eliminated due to restructuring or other business reasons, this is typically not considered retaliatory. However, the employer must demonstrate that the position was genuinely eliminated, not merely created to circumvent FMLA protections.
- Employee violates company policy (unrelated to FMLA): If an employee violates a company policy unrelated to their FMLA leave, for instance, a serious breach of conduct or a violation of a company's drug policy, the employer may have grounds for termination. The violation must be separate and independent from the use of FMLA leave.
- Employee fails to meet performance standards (pre-existing issues): If pre-existing performance issues existed before the employee took FMLA leave and these issues are well-documented, the employer may be able to justify termination. However, the employer must demonstrate that these performance problems were not exacerbated by the employee's absence due to FMLA. The employer should have a clear record of performance issues prior to the leave.
What if my employer says my position is no longer available when I return from FMLA leave?
This is a situation where careful scrutiny is required. The employer is obligated to reinstate the employee to the same or equivalent position with the same pay, benefits, and other terms and conditions of employment. If the employer claims the position is eliminated, the burden of proof lies with the employer to demonstrate a legitimate, non-retaliatory reason for the elimination. The employee should seek legal counsel if faced with this situation.
What should I do if I believe I've been wrongly terminated while on FMLA?
If you believe your termination while on FMLA leave is unlawful, you should immediately consult with an employment lawyer. They can advise you on your legal rights and help you determine whether you have grounds for a lawsuit. Document everything – your leave request, communication with your employer, and any evidence of performance issues.
How do I file a complaint regarding FMLA violation?
Filing a complaint for FMLA violations typically involves contacting the U.S. Department of Labor's Wage and Hour Division. They investigate claims of FMLA violations and can take action against employers who have violated the law.
In conclusion, while FMLA protection is strong, it is not absolute. Understanding the exceptions and documenting your situation is crucial to protecting your rights. Seeking legal advice if you suspect wrongdoing is highly recommended.
