It is illegal for your employer to fire or take any other adverse action against you because you requested FMLA leave or took FMLA leave. It is similarly illegal for an employer to do this to interfere with your FMLA rights, such as firing you because you are about to take FMLA leave.
However, your employer can fire you while you are on FMLA leave (or about to take FMLA leave for reasons that are not because you are exercising your rights under the FMLA). Your FMLA leave may also be protected under other laws such as the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the Pregnant Workers Fairness Act (PWFA), and/or other state and local laws that may provide some broader protections in relation to medical leave.
What Is the FMLA?
The Family Medical Leave Act (FMLA) was created to protect employees while on leave due to medical reasons. The FMLA is a federal, nationwide law that provides employees with twelve weeks of unpaid leave per year. Employers cannot retaliate against an employee for applying or taking medical leave covered by the FMLA, nor can an employer interfere with an employee’s rights to take FMLA leave.
Types of FMLA Leave
FMLA allows employees to take leave for a personal medical issue; take care of an immediate family member; take care of a newborn child, a newly adopted or a new foster child; take care of pregnancy complications; and for other serious medical necessities. FMLA can be used for issues related to pregnancy and/or disability; however, it can also be used for other medical matters such as routine illness from the flu, or medical appointments such as an annual physical or urgent care visit. FMLA leave can be a stretch of consecutive time, or it can be used for part days. Your FMLA leave can be a fixed schedule request, such as going to a medical appointment every Wednesday morning. It can also be for intermittent leave, such as for a condition that may cause you to be out of work and/or seek medical care when you are experiencing symptoms.
FMLA Coverage Requirements
Requirements for FMLA coverage are:
- The employee must have worked for a total of 12 months for the employer.
- A minimum of 1,250 hours must be worked by the employee during the 12 months immediately preceding the leave.
- FMLA only applies to companies with 50 or more employees within 75 miles.
The FMLA is a federal law that sets minimum requirements across the country. In addition to the FMLA, policies regarding unpaid medical leave may vary from state to state. Some states offer greater options and benefits. Special rules apply to education agencies such as schools that may give more flexibility than other employers. Additionally, there are different requirements for military caregiver FMLA. State and/or local laws can add to the protections of the FMLA but cannot reduce them.
If you qualify for FMLA medical leave, it provides job-protected leave benefits. This means when you take FMLA leave your job (or an equivalent) must be available to you upon your return.
Can Your Employer Fire You When You Are on FMLA?
An employee cannot be fired for retaliatory reasons for taking or requesting FMLA medical leave or for the purposes of interfering with an employee’s FMLA leave. Retaliation could include termination, as well as other actions such as a demotion, denial of a promotion, reduced pay and/or bonus, unfavorable reassignment and more. It’s important to meet with an experienced labor and employment attorney if you feel you have been wrongfully terminated due to FMLA.
There is the possibility of being terminated while on or returning from FMLA. An employer with any legitimate, non-discriminatory, and non-retaliatory reason can terminate an employee regardless of their FMLA leave status. However, employers cannot do so because of the employee’s FMLA. Examples of legitimate reasons for terminating an employee on FMLA leave are primarily:
- Poor performance or misconduct from the employee before taking FMLA.
- Evidence that the employee would have been terminated even if FMLA leave had not been taken. For example, a reduction in the workforce that had been documented before taking leave.
Remember that just because an employer states a legitimate, non-discriminatory reason does not mean that this is the real reason for the actions. These stated legitimate, non-discriminatory reasons may be pretext for employment discrimination. For example, the employer may say that the employee had poor performance, but the allegations made about poor performance are not in fact true. Or, even if the stated allegations of the poor performance are true, they can still be pretext for discrimination. For example, if the employer’s legitimate, non-discriminatory reason is that the employee came into work late, this could in theory be a legitimate, non-discriminatory reason to fire someone, but could be pretext for discrimination if the employer doesn’t fire other people who come in 10 minutes late, or the employer’s policies are to take other, less harsh steps against employees who are 10 minutes late.
If you believe the reasons stated for terminating you or otherwise mistreating you while on FMLA are pretext for discrimination, you should contact an experienced labor and employment attorney.
Intersection Between the FMLA and Other Laws
There is an overlap between the FMLA and the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the Pregnant Workers Fairness Act (PWFA), and other state and local laws regarding disability discrimination and/or pregnancy discrimination. Your requests for leave and/or schedule accommodations may be protected under these laws as well. In addition, these laws prohibit discrimination because of your pregnancy and/or disability, and require employers to provide reasonable accommodations, which can include leave and/or modified schedules. These laws also prohibit retaliation for requesting accommodations, including leave and/or modified schedules.
Just because your request was framed as an FMLA request does not mean that the underlying reason for the request wasn’t due to pregnancy and/or disability. In fact, the FMLA request can provide employers notice of the same.
In addition, these laws protect you in the hiring process and from day one on the job, unlike the FMLA, which begins after one year. The ADA, PDA, and PWFA, cover employers with 15 or more employees in any location, unlike the FMLA which only covers employers with 50 or more employees within 75 miles. Your state and or local laws may cover even smaller employers, as they do in both DC and Maryland.
The ADA also prohibits discrimination against employees due to their association with someone with a disability, such as having a family member with a disability. This means that if your employer is mistreating you because of your association with someone with a disability, this can violate the ADA. One common example is an employer that stereotypes an employee as unreliable or less hard working due to their need to care for a family member with a disability, or even a perception that they will be a worse employee because of their obligations towards this individual with a disability. An employee in this situation may have a claim under the FMLA for taking and/or requesting leave, as well as a claim under the ADA.
The ADA does not require employers to provide reasonable accommodations related to the disability of anyone other the employee, so requesting leave to care for a sick family member would not be an accommodation under the ADA but would be covered by the FMLA.
What To Do
If you think your FMLA rights have been violated, the best way to handle the situation is to consult with a labor and employment attorney. Call or e-mail us at Joseph, Greenwald & Laake, P.A. to schedule a consultation with an experienced attorney regarding your labor and employment issue or wrongful termination claim. We offer reliable counsel on how best to proceed and what your rights and responsibilities are.
