Can an Employee Be Fired While on FMLA Leave?
Meta description: Learn when an employee can be fired while on FMLA leave, what protections apply, what exceptions exist, and how to respond to a possible violation.
Being on Family and Medical Leave Act (FMLA) leave does not make an employee immune from every workplace decision. However, covered employers generally cannot fire someone because they requested or used qualifying leave, or punish them for exercising FMLA rights. The key question is often whether the employer would have made the same decision for a legitimate reason even if the employee had not taken leave. Understanding that distinction can help employees and employers assess a termination, document the facts, and identify practical next steps.
Can an Employee Be Fired While on FMLA Leave?
Yes, an employee can be fired while on FMLA leave in some circumstances. The FMLA does not guarantee a job for someone who would have lost it for a reason unrelated to the leave. For example, an employer may carry out a genuine layoff, close a facility, or discipline an employee for serious misconduct, provided the decision is not based on the employee’s FMLA request or absence.
By contrast, an employer generally may not terminate an employee for taking FMLA leave, interfere with the right to take leave, or retaliate against someone for asserting FMLA rights. A termination that occurs during leave is not automatically unlawful, but its timing, explanation, documentation, and treatment of comparable employees may matter when determining the employer’s reason.
The U.S. Department of Labor (DOL) enforces the FMLA. Its guidance explains that an employee has no greater right to a job than if the employee had remained at work, but also may not be treated worse because of taking protected leave. See the DOL’s FMLA overview and Fact Sheet #28.
What the FMLA Protects
The FMLA is a federal law that gives eligible employees of covered employers up to 12 workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. Qualifying reasons can include an employee’s serious health condition, caring for a spouse, child, or parent with a serious health condition, and certain needs related to a family member’s military service. Eligible employees may also take up to 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness.
During FMLA leave, eligible employees generally retain group health insurance coverage on the same terms as if they continued working. When leave ends, the employee usually must be restored to the same job or an equivalent one, with equivalent pay, benefits, and other employment terms. An equivalent job generally has substantially similar duties, status, privileges, and working conditions.
These protections apply only when the employee, employer, and leave qualify under the law. Some state and local laws provide additional leave or broader protections, and an employer’s policy or collective bargaining agreement may offer more generous rights than the FMLA.
Who Is Covered by the FMLA?
Private-sector employers are generally covered if they employed at least 50 employees for at least 20 workweeks in the current or preceding calendar year. Public agencies and public or private elementary and secondary schools are covered employers regardless of the number of employees.
Even when an employer is covered, an individual employee typically must meet all of these conditions:
- The employee has worked for the employer for at least 12 months. The months do not always have to be consecutive.
- The employee has worked at least 1,250 hours during the 12 months immediately before leave begins. Special rules apply to certain airline flight crew employees.
- The employee works at a location where the employer has at least 50 employees within 75 miles.
These requirements are general rules, and calculating eligibility can involve details such as breaks in service, work location, and hours worked. The DOL’s FMLA frequently asked questions provide additional information.
When a Termination During FMLA Leave May Be Lawful
A genuine layoff or business closure
An employer may eliminate a position during an employee’s leave if it can show the job would have been eliminated regardless of the leave. A company-wide reduction in force, loss of a contract, or facility closure may be lawful if the employer applies its selection criteria consistently. The employee does not have a right to reinstatement to a position that genuinely no longer exists.
However, a supposed restructuring may be challenged if the employee’s work continues under a different title, duties are reassigned to a new hire, or the employer’s explanation changes. Those facts do not prove a violation on their own, but they can help establish whether the stated business reason is credible.
Misconduct or a legitimate performance decision
An employer may generally act on a legitimate, consistently enforced workplace rule even when an employee is on FMLA leave. For example, a termination may be permissible for documented misconduct that is unrelated to the leave. Likewise, if an employer had already decided to terminate an employee for a valid reason before learning about the leave request, the FMLA does not necessarily prevent the decision.
The employer cannot use the leave itself as a reason to accelerate discipline, invent a policy violation, or impose a penalty that would not have applied to a comparable employee. The decision should be supported by reliable evidence and consistent treatment.
The employee has no right to return to the same job
FMLA restoration is not absolute in every situation. For example, an employee may have no greater right to reinstatement than if they had continued working. An employer may also deny restoration to certain highly compensated “key employees” if specific legal conditions are met, including potential substantial and grievous economic injury to the employer. This is a narrow exception: the employer must provide required notices, and the employee must meet the law’s definition of a key employee.
Separately, if an employee is unable to return after exhausting available FMLA leave, the FMLA itself generally does not require additional leave. Other laws may still apply. The Americans with Disabilities Act (ADA), for instance, may require an employer to consider additional unpaid leave as a reasonable accommodation when it would not cause undue hardship. State laws may provide further protections. The facts and applicable laws matter.
When Firing an Employee on FMLA Leave May Be Illegal
A termination may violate the FMLA if the employer acts because the employee requested, took, or attempted to take qualifying leave. The law prohibits both interference with FMLA rights and retaliation for exercising those rights.
| Potential warning sign | Why it may matter |
|---|---|
| Termination closely follows a leave request | Timing may support questions about the employer’s motive, although timing alone does not establish a violation. |
| The employer counts protected absences against attendance | FMLA-protected time generally cannot be used as a negative factor in discipline, attendance points, or employment decisions. |
| The stated reason changes or lacks documentation | Inconsistent explanations can raise doubts about whether the reason is legitimate and unrelated to leave. |
| Comparable employees are treated differently | Different treatment of employees with similar conduct or performance may be relevant evidence. |
| The employer discourages leave or threatens consequences | Threats, pressure to work during protected leave, or attempts to deter an eligible employee may implicate FMLA protections. |
These are indicators to examine, not automatic proof. Employers may have lawful reasons for action, and a full assessment depends on the records, timeline, policies, and circumstances.
Notice, Certification, and Employee Responsibilities
Employees generally must follow their employer’s usual procedures for requesting leave unless unusual circumstances prevent them from doing so. When the need for leave is foreseeable, such as a planned surgery, the employee generally must give 30 days’ notice when practicable. If the need is not foreseeable, notice should be given as soon as practicable. The employee does not have to use the words “FMLA,” but should provide enough information for the employer to recognize that the leave may qualify.
An employer may request medical certification for qualifying leave and may ask for recertification in permitted circumstances. Employees generally must be given at least 15 calendar days to return a requested certification, subject to the rules and any practical obstacles. Failure to provide required information after an appropriate request can affect leave protection. Employers must explain certification requirements and the consequences of not providing a complete and sufficient form.
Employees on intermittent or reduced-schedule leave may need to follow call-in procedures and provide updates as required by law and reasonable workplace rules. The employer cannot require an employee to perform work during FMLA leave or penalize the employee simply for taking protected time. But the FMLA does not excuse unrelated violations of neutral policies.
What Happens to Benefits and Pay?
FMLA leave is usually unpaid, though an employee may elect or an employer may require the use of accrued paid leave under applicable policies. Paid vacation, sick leave, or other paid time may run at the same time as FMLA leave when the law and policy permit. The total protected leave generally does not increase just because paid time is used.
For group health coverage, the employer generally must maintain coverage during FMLA leave on the same conditions as if the employee were working. The employee remains responsible for their usual share of premiums. If the employee does not return to work after leave, the employer may be able to recover certain health insurance premiums it paid, subject to exceptions such as circumstances beyond the employee’s control or a continuing serious health condition.
FMLA leave also may not be used as a negative factor in employment decisions, including decisions about promotions, discipline, or attendance-based benefits. Rules for bonuses and other benefits can depend on whether the employee met the relevant goal or requirement while actively working and how the employer treats comparable non-FMLA leave.
What to Do If an Employee Is Fired During FMLA Leave
- Save the records. Keep the termination notice, leave request, eligibility and designation notices, medical certification correspondence, attendance records, performance reviews, and relevant policy documents.
- Write down the timeline. Record when the employee requested leave, when the employer learned the reason, what explanations were given, and when the termination decision was made.
- Ask for the employer’s stated reason. A clear written explanation can help identify whether the decision relates to a layoff, policy violation, performance issue, or another stated basis.
- Review applicable protections. In addition to the FMLA, consider state or local leave laws, disability-accommodation rules, employer policies, and any union agreement.
- Seek advice promptly. An employment attorney or the DOL’s Wage and Hour Division can help assess the facts and explain possible options.
Employees can contact the DOL Wage and Hour Division at dol.gov/agencies/whd/contact or call 1-866-487-9243. A complaint may also be filed in court. FMLA claims generally have a two-year filing period, extended to three years for willful violations, so waiting can affect available options. Legal deadlines and procedures can depend on the claim and circumstances.
How Employers Can Reduce FMLA Termination Risks
Employers can lower legal risk by separating leave administration from performance decisions where practical, documenting legitimate business reasons, applying policies consistently, and ensuring decision-makers understand that protected absences cannot count against an employee. Before issuing discipline or terminating someone on leave, the employer should verify eligibility and leave status, review the timeline, and confirm that the decision would have been the same if the employee had not taken leave.
Clear communication also matters. Employers should provide required eligibility, rights-and-responsibilities, and designation notices; explain certification requirements; maintain health coverage as required; and address return-to-work questions consistently. A careful process does not guarantee that a decision is lawful, but it helps ensure that the decision is based on accurate information rather than the employee’s use of protected leave.
The Practical Answer
An employee can be fired while on FMLA leave for a legitimate reason that is independent of the leave, such as a genuine position elimination or documented misconduct. An employer generally cannot fire, penalize, or pressure an employee because the person requested or used qualifying FMLA leave. When a termination occurs during leave, the central issue is often the reason for the decision and whether the employer can support it with consistent, credible evidence. Individual cases may also involve state laws, disability protections, or contractual rights.