When You Take FMLA Leave—And Your Employer Uses It Against You
Know Your Rights—and How to Protect Them
Under the Family and Medical Leave Act (FMLA), you’re entitled to 12 weeks of unpaid leave per year to fulfill caregiving obligations or handle a medical issue. At the end of your leave, you must be able to return to your previous job at your previous level of pay.
But some employers resist giving employees the leave they’re entitled to under the FMLA—and may even use it against them. Some examples of that include:
- Not promoting you because you took FMLA leave
- Firing you for taking legally protected leave
- Denying you benefits while you’re on FMLA leave
- Citing your use of FMLA leave as part of disciplinary action or a negative review
When Is It Legal to Fire Someone on FMLA Leave?
One of the more obvious violations of the FMLA is when an employer fires an employee while they’re on leave—or just after they return. However, there are situations where it’s legal to do that.
Legally, an employer can’t fire you because you’re on FMLA leave. The reason has to be unrelated. Of course, most employers won’t admit that they’re firing you for taking leave you’re entitled to.
Some scenarios where it could be judged legal for an employer to fire you while you’re on FMLA leave (or just after) include:
- When you or your employer don’t qualify for FMLA protections. The law applies only to employers with more than 50 employees—and employees who’ve been employed for at least 12 months.
- If you failed to give the required amount of notice under the FMLA. This is usually 30 days’ notice, unless you’re dealing with an emergency situation.
- If you would have been fired anyway, regardless of your FMLA leave, because of poor performance prior to taking leave—or during leave.
- If you committed fraud or otherwise broke the company’s rules, either while on leave or prior to leave, and your employer finds out while you’re on leave.
What It Takes to Prove Retaliation
Retaliation involves punishing you for doing something you’re legally entitled to do—such as taking FMLA leave.
There are some scenarios where firing an employee while on FMLA leave is justifiable. However, retaliation is illegal—and it’s not unusual.
According to the Equal Opportunity Employment Commission (EEOC), retaliation is the most common type of workplace discrimination charge brought to court.
In order to prove your employer has retaliated against you for taking FMLA leave, you have to show that you were engaging in a protected activity you had a legal right to engage in (i.e., taking FMLA leave); your employer took action against you; and the reason for it was your leave.
Your employer will most likely argue that their decision to fire you had nothing to do with your leave. Once they do that, it is then on you (or your lawyer) to demonstrate that their justification was simply an excuse for retaliation.
Has Your Employer Used Your FMLA Leave Against You? We Can Help
If you took FMLA leave and your employer took adverse action against you, you need to speak to an experienced employment lawyer.
The conversation will be free and confidential. Your lawyer can help evaluate your case and take appropriate legal action to get you the compensation you deserve—including defending your rights in court.
The information provided here does not constitute legal advice. It is intended for general purposes only. If you have questions about a specific legal issue, you should speak to an attorney.