Can You Be Fired While on FMLA Leave?

An employer generally cannot fire you because you requested or used protected FMLA leave, but the leave does not shield you from every termination. An employer may still act for a legitimate reason that is unrelated to your leave, such as a genuine layoff or a documented performance issue. The key question is whether the employer would have made the same decision if you had not requested or taken leave. Eligible employees generally have a right to return to the same job or an equivalent one after protected leave. These protections apply only when the employee and employer meet the FMLA’s coverage and eligibility requirements, and other laws or policies may offer additional protections.

Who Is Covered by FMLA Protection?

FMLA protection does not automatically apply to every employee or every workplace. In general, a private-sector employer is covered if it has at least 50 employees for the required period. Public agencies and public or private elementary and secondary schools are also covered employers. For an employee to qualify, they generally must have worked for the employer for at least 12 months and have at least 1,250 hours of service during the 12 months before leave begins. They also generally must work at a location where the employer has at least 50 employees within 75 miles.

These requirements matter because the job protections described here apply to qualifying FMLA leave. An employee who does not qualify may still have rights under another leave law, a workplace policy, or an agreement, but those protections do not come from the FMLA itself.

What Does FMLA Job Protection Mean?

The FMLA provides eligible employees with unpaid, job-protected leave for qualifying family and medical reasons. The U.S. Department of Labor explains that employers may not interfere with an employee’s FMLA rights or punish, threaten, discriminate against, or fire someone for requesting or using protected leave. When the employee returns, they generally must be restored to the same job or an equivalent job with comparable terms and conditions. The Department’s FMLA Fact Sheet #28 describes these protections.

In practice, an employer should not count protected leave as a negative mark against an employee. For example, a manager should not treat an employee as less committed because the employee needed time away for a qualifying reason. The FMLA can also protect against other adverse actions tied to leave, such as reducing shifts, transferring an employee, or withholding a bonus the employee otherwise earned.

When Can an Employee Still Be Fired During FMLA Leave?

Being on FMLA leave does not make an employee immune from an otherwise lawful employment decision. The central issue is the reason for the decision and whether the employer can show it was independent of the employee’s request for or use of leave.

For example, an employer may be able to terminate an employee on leave as part of a genuine layoff that eliminates the employee’s position. A previously documented performance or conduct issue may also support termination if it would have led to the same decision without the leave. The same principle can apply when a department or job is eliminated for business reasons, or when misconduct is discovered during leave and workplace rules are applied consistently.

By contrast, an employer creates legal risk if it uses an employee’s leave request or leave use as a negative factor. In a reported termination dispute, HR Dive’s report on an FMLA dispute discusses the importance of distinguishing a legitimate performance decision from a decision influenced by protected leave. The particular facts and applicable law determine whether a termination violates the FMLA.

What May Raise Questions About the Reason for a Firing?

The timing of a termination alone does not prove an FMLA violation. However, a firing soon after an employee requests leave may prompt questions about whether the leave played a role. Other potentially relevant facts include a reason for termination that changes over time, an explanation that lacks supporting records, or treatment that differs from how employees with similar performance histories were treated. These facts do not settle the issue on their own, but they can help explain why the employer’s stated reason deserves careful review.

A decision by the U.S. Court of Appeals for the Eleventh Circuit illustrates the importance of the connection between leave and an employment action. The court found FMLA interference where a worker was fired as a direct result of needing leave to care for his wife during pregnancy complications. HR Dive’s coverage of the FedEx decision describes the case. It does not mean every termination during leave is unlawful; it shows why the reason for the decision matters.

What Happens When FMLA Leave Ends?

FMLA restoration rights generally apply when an eligible employee returns from protected leave. If the employee does not return after the available FMLA leave is exhausted, the FMLA alone may not require the employer to keep the position open. That does not automatically resolve whether another law or workplace policy applies.

An employee who returns is also not protected from a legitimate termination simply because they recently used FMLA leave. The Milwaukee Journal Sentinel coverage describes a case in which an employee was fired after FMLA leave and explains that the timing alone did not make the termination illegal. The relevant question remains whether the decision was tied to protected leave or another prohibited reason.

Other protections may matter after FMLA leave ends. Depending on the circumstances, disability accommodation laws, state leave programs, employer policies, or union agreements may apply. For example, an employee considering leave for a qualifying mental health condition can learn more about FMLA leave for mental health.

What Can Employees Do If They Are Concerned?

Keeping clear records can help establish what happened and when. Save leave requests, medical certification paperwork, approval notices, return-to-work information, and relevant messages. For calls or meetings about leave or job status, note the date, who participated, and what was said.

An employee can also ask the employer to provide the reason for a termination in writing. Comparing that explanation with prior performance reviews, disciplinary records, layoff announcements, and company policies may help show whether the reason is consistent with earlier documentation. If the employee believes the FMLA was violated, they can contact the U.S. Department of Labor’s Wage and Hour Division. A person who has been fired after leave may also want to understand unemployment eligibility after FMLA leave.

What Should Employers Consider Before Acting?

An employer does not have to avoid every employment decision involving someone on protected leave. It should be able to identify and support the independent reason for the action, then check that the decision is consistent with how similar situations have been handled. Relevant records may include performance reviews, prior disciplinary notices, business plans, or documentation of a position’s elimination.

Employers should also avoid describing protected leave as a burden or treating it as evidence of poor commitment. If the facts suggest that leave may have influenced a proposed decision, reviewing the decision carefully before acting can help clarify whether the stated reason is genuinely independent of the leave.

*This article is for general informational purposes only and is not legal advice.