Can Employers Use FMLA Leave Against You?

Under the law, American employees are entitled to certain protections after a major life event or illness affecting them or their immediate family members. If your employer denies the privileges guaranteed to you under the Family and Medical Leave Act (FMLA), you may be able to file a claim for workplace discrimination.

FMLA provides employees with job-protected leave benefits. Generally, this means employees who qualify for and take FMLA leave can return to their job or an equivalent job at the end of their leave period. However, some employers engage in FMLA harassment, which means you could face getting fired while on FMLA. If you have found yourself in this situation, you may be wondering if it is legal to be fired for taking FMLA.

An employee’s eligibility for FMLA leave is governed by a number of factors related to the size of the employer, the duration of the employee’s employment and number of hours worked, and the nature of the illness or injury to the employee or the employee’s family member.  If you are unsure as to whether you qualify for FMLA leave, you can check with your company’s Human Resources Department or consult with an attorney.

At Weisberg Cummings, P.C., we offer legal representation to Pennsylvania workers with FMLA claims. Our knowledgeable attorneys have a long history of fighting for the rights of workers in the state, and we aim to ensure you are able to continue providing for yourself and your family.

Can I Be Fired While on FMLA?

Fortunately, FMLA includes an antiretaliation provision. Under this provision, employers may not fire their employees simply for taking or requesting FMLA leave. However, an employer can fire an employee while the employee is on FMLA leave or right after the employee returns if the reason for the termination is unrelated to the leave.

When You Can Be Terminated While on FMLA Leave

If you would have been terminated even if you did not take FMLA leave, it may be acceptable for your employer to go through with the termination. For example, you may be fired for one of the following reasons:

• Misconduct
• Fraud
• Disciplinary problems
• Documented poor performance
• Not complying with job requirements

If these job-related problems were known before you left, the employer typically should have documented them – if not, it may be evidence that the problems are being used as a pretext for discrimination. Additionally, if you were subject to downsizing or being laid off regardless of whether you were taking a leave of absence, your employer can proceed with the termination.

When You Cannot Be Terminated Due to FMLA Leave

An employee cannot be terminated for retaliatory reasons, nor can the termination be done with the intent to keep other employees from taking FMLA leave. If you were terminated while on leave, there may be some situations that indicate the termination was inappropriate, retaliatory or intended to discourage other employees from requesting or taking FMLA leave.

For instance, if you were fired for having too many absences, this could be related to your FMLA leave. If your supervisor did not discuss termination at all with you before you took your leave, this may be a red flag. Additionally, be wary of any comments your supervisor makes that imply your termination was affected in any way by your FMLA leave.

Essentially, your employer may be able to proceed with your termination as long as it can be proven that your termination was non-discriminatory and not related to your FMLA leave. Documentation is critical in these cases, and an employment lawyer can be an invaluable resource for you if you are facing FMLA employer harassment.

Signs Your Employer May Be Violating Your FMLA Rights

Your employer should honor the rights you have under the FMLA. Unfortunately, some employers act in ways that violate your rights. The following are signs that your employer may be violating your FMLA rights:

• You are required to give more notice than is appropriate: If your reason for requesting FMLA leave is foreseeable, you usually need to provide 30 days’ notice. Your employer may require that you give more notice, which is a violation of your FMLA rights.
• You are expected to work while on FMLA leave: Can your boss contact you during FMLA leave? As with other types of leave, your employer should not ask that you be available by email or phone during your leave or that you work from home.
• You are disciplined for taking leave: Being fired for taking FMLA leave is the most egregious violation of your employee rights under FMLA, but you can also be punished in different ways. You may be passed over for a promotion or even subjected to verbal abuse upon your return from leave.
• Your FMLA request is not recognized by your employer: When you request FMLA leave, you do not have to use the term FMLA explicitly. Instead, it is your employer’s job to review your request and understand that your request falls under FMLA leave based on the circumstances. If your employer fails to do so, they could be violating your FMLA rights.
• Your employer makes taking intermittent leave difficult: Depending on your situation, you may be able to take your leave all at once or on an intermittent basis, which means scaling back on the number of days or hours you work each week. Some employers violate an employee’s FMLA rights while he or she is on intermittent leave by demoting the employee or otherwise materially changing the employees job duties.
• Your FMLA leave is denied or delayed by your employer: While your employer has the right to request a certain amount of notice or that you schedule treatments or appointments outside of work hours as much as possible, your leave cannot be denied or delayed in other scenarios. For example, your employer typically cannot ask you to delay a major surgery your doctor says you need.
• You are not reinstated at your previous level: After you return from leave, you should be allowed to return to your previous position or an equivalent job. Everything about your job should be the same or equivalent, such as your job duties, pay and benefits. If you return to your job after your FMLA leave and this is not the case, your employer could be violating your FMLA rights.

Has Your Employer Used FMLA Against You?

At Weisberg Cummings, P.C., our employment attorneys are dedicated to helping you when you or someone you love is wronged by another employee or an employer. With more than four decades of combined experience, our lawyers know how to handle all kinds of employment law matters and how to fight for the rights of individuals in a variety of situations.

Our lawyers will take the time to thoroughly understand your situation and get to know you. If you are an employee in Pennsylvania who has an FMLA wrongful termination or FMLA retaliation claim, schedule a consultation with the lawyers at Weisberg Cummings, P.C., today.

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