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Can an employer terminate me while I'm on FMLA leave?

Your employer cannot terminate you for exercising your right to take a Family Medical Leave Act sabbatical. In other words, if you become pregnant or sick -- or if your spouse or family member becomes pregnant or sick or you adopt a baby into your home -- you can take some unpaid time off work without fear of losing your job.

That said, your employer can still terminate you while you're exercising your FMLA rights if your employer has a valid reason to do so.

What the FMLA doesn't protect

The FMLA protects your job, and your right to return to the same conditions of employment and benefits you enjoyed before taking time off. However, if your employer has a nondiscriminatory and legitimate reason to fire you, he or she may do it without fear of repercussions.

Essentially, if your employer has performed a review of your work that shows poor performance, or you have failed to meet benchmarks established in a corrective action program to upgrade your work product, the employer can terminate you before, during and following your FMLA leave period.

Here are some other viable reasons to terminate an employee on FMLA leave:

  • Poor performance that the employer identifies during the leave period.
  • Engaging in fraud, insubordination or prohibited conduct during leave.
  • As a part of a larger program of layoffs, as long as the employee was not selected due to his or her FMLA leave.

A tricky situation for employers

Employers who terminate their employees during an FMLA leave period may be engaging in discriminatory behavior. If you were terminated -- even for what appears to be a valid reason -- before, during or after your FMLA leave, it's possible that your employer violated your legal rights. Make sure to explore your options before you simply take on the chin what could be a wrongful termination.

Source: FindLaw, "Walking the FMLA Termination Tightrope," accessed April 27, 2018

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