FMLA and Termination: Legal Risks for Employers

The Family and Medical Leave Act (FMLA) gives eligible employees up to 12 weeks of unpaid, job-protected leave for specified medical and family reasons, but that protection is not absolute. Employers may still make legitimate business decisions, including termination, as long as those decisions are independent of the employee’s use of FMLA leave and comply with federal and state law.

This article explains how termination can lawfully occur when an employee is on or has taken FMLA leave, the boundaries of anti-retaliation rules, and practical steps for employers and HR professionals to navigate these issues without violating worker rights.

Core Features of FMLA Protection

Understanding the basic structure of FMLA is essential before analyzing termination risks. FMLA applies to covered employers and eligible employees, and creates specific rights and duties for each.

Who Is Covered by the FMLA?

• Covered employers: Generally private-sector employers with 50 or more employees in 20 or more workweeks during the current or preceding calendar year, as well as certain public agencies and schools.
• Eligible employees typically must:
  • Have worked for the employer for at least 12 months (not necessarily consecutively).
  • Have logged at least 1,250 hours of service in the 12 months before leave begins.
  • Work at a location where the employer has at least 50 employees within 75 miles.

Reasons Employees May Take FMLA Leave

Eligible employees can take up to 12 workweeks of unpaid, job-protected leave in a 12‑month period for specific reasons, including:

• Birth, adoption, or foster placement of a child.
• Caring for a spouse, child, or parent with a serious health condition.
• The employee’s own serious health condition that prevents them from performing essential job functions.
• Certain military-related exigencies.

In some cases, employees may be eligible for up to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness.

What “Job-Protected” Really Means

FMLA’s promise of job protection focuses on reinstatement rights rather than a guarantee of permanent employment.

• Employees have the right to return to the same or an equivalent position with equivalent pay, benefits, and terms and conditions of employment after approved FMLA leave.
• Employers must maintain group health insurance benefits for employees on FMLA leave as if they were still working.
• Employers cannot retaliate against employees for requesting or using FMLA leave.

However, regulations make clear that employees on FMLA leave do not receive greater job security than co-workers. If the employer can show that a termination would have occurred regardless of the leave, it may be lawful.

When Termination Is Lawful During or After FMLA Leave

FMLA does not prevent employers from enforcing neutral policies or responding to legitimate business needs. Courts often uphold terminations that rest on nondiscriminatory, well-documented reasons unrelated to the exercise of FMLA rights.

Neutral Business Decisions

Employers may terminate employees on FMLA leave when the decision is driven by factors that affect employees regardless of leave status. Common scenarios include:

• Company-wide layoffs or restructuring that eliminate positions or departments.
• Plant closure or site shutdown where all jobs at a location are eliminated.
• Budget cuts or financial distress resulting in reductions in force.

In these situations, the employer must show that employees on FMLA leave were treated similarly to comparable employees not on leave, and that the decision was not influenced by the leave itself.

Performance and Misconduct Issues

FMLA does not shield employees from discipline for poor performance or misconduct that would justify termination for any worker. Employers can terminate an employee on leave if there is a legitimate, well-supported reason unconnected to FMLA.

• Documented performance problems that predate the leave, such as repeated errors, missed deadlines, or failure to meet sales targets.
• Policy violations including harassment, theft, safety breaches, or other serious infractions.
• Insubordination or fraud, including misuse of leave (for example, working another job or engaging in activities inconsistent with the stated medical reason for leave).
• Discovery of previous misconduct while the employee happens to be on leave (e.g., audit reveals falsified records).

The key legal question is whether the employer would have made the same decision if the employee had never requested leave. Employers should be ready to show consistent treatment of similarly situated employees.

End of Leave and Inability to Return

After an employee exhausts their FMLA entitlement, the statute’s job-protection rules no longer apply. At that point, employers may consider termination if the employee cannot return to work, but they must also analyze whether other laws, such as disability statutes, impose additional obligations.

Because the interaction between FMLA and disability laws is complex, employers should avoid automatic termination at the end of FMLA leave and instead conduct an individualized assessment.

What Employers Are Prohibited from Doing

While employers retain significant flexibility, FMLA clearly prohibits retaliation and interference with protected rights. Violations can lead to administrative complaints, federal lawsuits, and substantial damages.

Retaliation and Discrimination

Employers may not take adverse actions because an employee:

• Requested, attempted to take, or used FMLA leave.
• Filed a complaint or cooperated with an investigation concerning FMLA rights.
• Opposed practices believed to violate FMLA.

Retaliation can include termination, demotion, reduction in pay, loss of opportunities, or hostile treatment that would dissuade a reasonable person from using FMLA leave.

Interference with FMLA Rights

Employers also cannot interfere, restrain, or deny the exercise of FMLA rights. Examples include:

• Refusing to approve qualifying leave.
• Discouraging employees from making leave requests.
• Conditioning leave approval on improper factors unrelated to eligibility.

Under federal guidance, employers must provide required notices, designate qualifying leave appropriately, and avoid practices that effectively prevent employees from using their entitlement.

Improper Use of Performance Reviews or Metrics

One subtle risk is using metrics that penalize employees for legitimate absences. Employers should avoid:

• Attendance scorecards that count approved FMLA days as negative points.
• Productivity measures that treat reduced hours due to intermittent leave as misconduct.
• Comparisons that ignore the impact of protected time away.

Performance management systems should be designed so that FMLA leave neither benefits nor harms the employee’s evaluations; only actual work performance should be assessed.

Employer Best Practices to Reduce Termination Risk

To walk the “tightrope” of termination decisions involving FMLA leave, employers should adopt clear, consistent practices. Proper documentation and communication significantly reduce legal exposure.

Careful Documentation

Robust records help demonstrate that a termination is based on legitimate reasons rather than FMLA status.

• Performance records: Maintain contemporaneous notes of coaching, warnings, and evaluations that predate the leave period.
• Policy enforcement logs: Record disciplinary steps taken for similar violations across the workforce.
• Decision-making trail: Document who participated in the decision and the criteria used (e.g., layoff selection matrices).

These documents should exist before the leave request whenever possible, showing that concerns are not manufactured in response to FMLA usage.

Consistent Policy Application

Consistency is central to defending termination decisions.

• Apply attendance, performance, and conduct policies uniformly to all employees.
• Use the same disciplinary steps for comparable violations, regardless of whether the employee is on leave.
• Ensure managers understand that FMLA status cannot be factored into employment decisions.

Inconsistent treatment of an employee who used FMLA leave compared with similarly situated colleagues can be strong evidence of retaliation or discrimination.

Communication and Notice Requirements

FMLA regulations impose specific notice obligations on both employees and employers.

• Employee notice: When the need for leave is foreseeable, workers generally must provide 30 days’ advance notice; when not foreseeable, they must notify the employer as soon as practicable.
• Employer notice of eligibility: After learning that an employee’s leave may be for a qualifying reason, employers must inform the employee of FMLA eligibility, generally within five business days, absent extenuating circumstances.
• Designation notice: Employers must also notify employees whether the leave will be designated as FMLA‑protected within roughly the same timeframe.

Failure to provide these notices can lead to disputes about whether an employee’s rights were interfered with, particularly if a termination follows soon after the leave request.

Coordination with Disability and State Leave Laws

FMLA is only one piece of the legal framework around employee leave.

• ADA and similar laws may require additional leave or job modifications as reasonable accommodations for qualified individuals with disabilities.
• State family and medical leave laws can grant broader or different protections than FMLA, sometimes including paid leave or expanded coverage.

Before terminating an employee at or after the end of FMLA leave, employers should evaluate whether other legal obligations continue to apply.

Employee Options If Terminated During FMLA Leave

Although this guide focuses on employer risk management, terminated employees also have specific options if they believe their rights under FMLA were violated.

• Internal review: Request written explanations for the termination, including performance documentation and layoff criteria.
• Administrative complaint: Employees can file a complaint with the U.S. Department of Labor’s Wage and Hour Division (WHD) if they believe their FMLA rights were interfered with or if they were retaliated against.
• Private lawsuit: Workers may pursue civil actions seeking lost wages, benefits, and other damages; there are specific time limits for filing, including extended periods for willful violations.

Employees should keep thorough records of their leave request, medical certifications, communications with the employer, and any performance reviews or disciplinary actions that preceded termination.

Frequently Asked Questions

Can an employer fire someone while they are actively on FMLA leave?

Yes, but only if the employer can show that the termination is based on legitimate, nondiscriminatory reasons unrelated to the leave, such as company‑wide layoffs or documented misconduct. Firing someone because they requested or took FMLA leave is prohibited.

Does FMLA guarantee that I will always get my exact job back?

FMLA guarantees reinstatement to the same or an equivalent position, not necessarily the identical job title or assignment. Employers may change organizational structures as long as the new role is truly equivalent in pay, benefits, and working conditions.

What if my performance issues were discovered while I was on leave?

If an employer uncovers prior misconduct or poor performance during an employee’s FMLA leave, it may still lawfully take action, including termination, provided it would have done so even if the employee were not on leave and the decision is properly documented.

Can I be terminated if I cannot return to work after my 12 weeks of FMLA?

Once FMLA leave is exhausted, its job‑protection provisions generally end. However, employers must evaluate whether disability laws or state leave laws require additional accommodations or extended leave before deciding to terminate.

What should an employer do before terminating an employee who used FMLA?

Employers should review documentation, confirm that reasons for termination are unrelated to FMLA, ensure consistent treatment compared with other workers, verify compliance with notice obligations, and consider consulting legal counsel, especially where disability or state laws may apply.

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Sneha TeteBeauty & Lifestyle Writer

 

Sneha is a relationships and lifestyle writer with a strong foundation in applied linguistics and certified training in relationship coaching. She brings over five years of writing experience to waytolegal,  crafting thoughtful, research-driven content that empowers readers to build healthier relationships, boost emotional well-being, and embrace holistic living.

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