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Can You Be Fired During Medical Leave?


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, and conditions).

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' compensation laws.

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.

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