Can You Be Fired During Medical Leave?
What you need to know about returning to work after FMLA leave
Your surgery was a success and you’ve completed rehabilitation. Your
doctor has cleared you to return to work and you’re looking forward
to resuming your normal life.
Then your employer tells you that you no longer have a job. Now what?
Unfortunately, this kind of scenario plays out all the time. An employer
may assume that a worker won’t be as productive after a medical
incident, or a manager wants to “get back” at an employee
who took leave … so that person loses his or her job right when
they probably need it the most.
The good news is that there are legal remedies for people who have been
unfairly fired during or after medical leave. Let’s discuss your
rights under the Family and Medical Leave Act (FMLA).
Your right to take leave
The FMLA provides eligible employees the right to take up to 12 weeks of
job-protected leave for medical treatment and recuperation, or to care
for family members.
The job protection aspect of the FMLA is intended to relieve employees
of the need—and related stress— of having to choose between
work and healthcare.
Importantly, an employer must also continue to maintain any group health
benefits normally provided during FMLA leave.
Employers that must comply with the FMLA cannot interfere with your rights
to take medical leave. Nor can employers retaliate against you for exercising,
or attempting to exercise, your rights under the FMLA.
Your right to reinstatement
If you are able to return to work following FMLA leave, your employer is
generally required to restore you to the same job you held before your
leave commenced (or a nearly identical job with equivalent benefits, pay,
You’re generally entitled to reinstatement even if you’ve been
replaced or your position has been restructured to accommodate your absence.
If you’re laid off while on medical leave, the employer must be
able to show that you would’ve been laid off whether or not you
had taken leave.
Example: You take FMLA leave to due to a serious illness. When you attempt
to return to work several weeks later, your employer informs you that
your job duties have been delegated to other employees and your job is
no longer available. You may have a claim under the FMLA for wrongful
termination and unlawful interference with your FMLA rights.
When you can’t resume your regular duties
Although, in general, an employer cannot terminate an employee who is on
FMLA leave, there are certain exceptions.
One exception applies when an employee cannot perform an essential function
of his or her position due to a physical or mental condition. The FMLA
does not require the employer to reinstate the employee to another position.
However, the employee may have other rights that are implicated under the
Americans with Disabilities Act (ADA), state leave laws, or workers'
Contact us for
a consultation now
If you believe that your employer interfered with your rights by firing
you while you were on medical leave, or if you have questions regarding
your rights under the FMLA, you should speak to an employment law attorney.
Call or email us today to discuss your unique situation.