Can You Terminate an Employee Who’s on FMLA Leave?

Can You Terminate an Employee Who’s on FMLA Leave?

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Can You Terminate an Employee Who’s on FMLA Leave

The Family and Medical Leave Act is designed to allow eligible employees up to 12 weeks of leave from their job per year, for an eligible serious medical condition or an eligible serious medical condition of an immediate family member. Eligible employees who take FMLA leave are entitled to return to their position or a similar position when they return to work.

To be eligible for FMLA, an employee must have worked at an employer for one year and accrued 1,250 hours of service for the employer. However, the employer has to have 50 employees within a 75-mile radius, so most small businesses are not eligible for coverage under the FMLA.

An eligible employee may take FMLA leave for the following reasons:

  • The birth of a child and to bond with a newborn;
  • The placement of a child with the employee through adoption and/or foster care;
  • To care for an immediate family member, such as child, parent or spouse;
  • To take medical leave when the employee is unable to work due to a serious medical condition. 

Employees may also take FMLA leave intermittently, in small chunks of time when medically necessary. Before taking FMLA leave, an employee must notify the employer of the need for leave within 30 days of the start of the leave, or in cases of emergencies, as soon as possible.  There are certain situations where this cannot occur so the employee should apply for FMLA leave as soon as possible in those circumstances and let the employer know that he or she might have a need for leave. 

Now that we’ve discussed the basics, can an employee be terminated while on FMLA leave?

First, it is important to remember that the federal regulations are not the only laws that apply to employees on FMLA leave. Some states have additional medical leave laws and regulations that may affect employment.  Typically, FMLA leave protects your job while you are on leave and you must be returned to your position or a similar position upon returning from leave.  However, this does not mean that you cannot be terminated if there is a legitimate reason for termination.

For instance, if you are accused of a verbal altercation with a co-worker prior to taking leave, you can be terminated, even if the termination occurs while on FMLA leave.  Employers violate the law when the reasons for the termination are not valid, are not true and are a pretext for terminating because of the usage of FMLA leave. 

If you have any questions about your FMLA status or employee rights to FMLA leave, contact an FMLA attorney in Columbus, Ohio to help you.

Here are some reasons why an employee might be terminated on FMLA:

  • The quality of the employee’s performance before taking leave was subpar prior to taking leave;
  • Before the leave, the employee failed to take corrective action to improve the quality of their performance in meeting company goals;
  • The employee was found to engage in illegal activity while on leave;
  • Insubordination, infractions or fraud on the employee’s part was discovered while they were on leave;
  • A reduction in force is necessary for the company and the employee was under consideration for a layoff prior to taking FMLA leave.

If an employee believes that they were terminated wrongfully or discriminated against while on FMLA leave, it is crucial that they contact a lawyer that specializes in FMLA, discrimination and retaliation in Ohio.

Contact the Friedmann Firm’s team of legal experts in FMLA, discrimination and retaliation in Ohio if you need counsel on FMLA leave and terminating employees.


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