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Can I get laid off while I’m on FMLA leave?

On Behalf of | Jun 13, 2023 | Wrongful Discharge

Unfortunately, employees can be laid off while on FMLA leave. However, employers must follow certain rules before laying off an employee on protected leave, and their failure to do so could be unlawful.

What is the FMLA?

The Family Medical Leave Act (FMLA) is a federal law that allows some employees to take up to 12 weeks of unpaid leave per year for personal medical issues or to care for loved ones. Only employees who work for companies with 50 or more employees and who worked for a minimum of 12 months and at least 1,250 hours during the immediately preceding 12 months may be eligible for FMLA leave.

Rules employers must follow

The FMLA protects an employee’s job status until the employee returns to work. That means an employer cannot typically fire, demote, or relocate the employee while the employee is on leave.

However, the FMLA does not protect an employee’s job in all situations. If the employer has a legitimate, non-discriminatory reason to terminate the employee (in other words, if the employee would have been terminated regardless of whether they took FMLA leave), then the employer may terminate the employee before they return. For example, if the employer learns that the employee engaged in misconduct, or if the employer decides to close down the employee’s entire department, the employee may be let go while  on FMLA leave.

What should I do if I was laid off while on FMLA leave?

Employees who are laid off while on FMLA leave should ask their employers why they were terminated. If the employer refuses to share the reason for the termination, or if the reason seems suspicious, the employee should contact an experienced employment attorney to discuss the situation and determine whether the employee has legal recourse against the employer. If the employer violated the FMLA, the employee may be able to recover back pay and other damages from the employer.

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