Career Corner: Can an Employee Be Terminated While on Medical Leave?

Each year, 20 million people take unpaid medical leave.

If you find yourself among their ranks, you’re likely to have many questions. Finding answers to these questions helps you prepare for your leave and for your return to work. It also helps put your mind at ease in already stressful circumstances.

One of the most frightening questions you might ask yourself is “Can an employee be terminated while on medical leave?”

Read on to learn more about the laws that govern continuing employment and employee termination during medical leave.

What Is Employee Medical Leave?

Employee medical leave generally falls into two categories: paid and unpaid leave.

Paid leave is an increasingly common benefit. Some employers use it to attract workers in a competitive job market. Certain states also guarantee paid leave to eligible workers.

Currently, however, most jobs do not include paid medical leave as a benefit. Thus, most instances of medical leave are unpaid.

Unpaid Leave Under the Family and Medical Leave Act (FMLA)

The most significant piece of legislation governing unpaid leave is the Family and Medical Leave Act (FMLA). It grants eligible workers at covered employers the right to unpaid medical leave under certain circumstances.

Covered employers are those that employ 50 or more workers within 75 miles of each other. They must also employ these workers over 20 or more weeks in a calendar year.

Eligible workers must meet two conditions. First, they must have worked for the covered employer at least 1,250 hours in the twelve months prior to the requested leave. Second, their employment with the covered employer must span at least 12 months. These months need not be consecutive.

The FMLA covers situations that affect the employee and his or her immediate family. The FMLA defines the immediate family as the employee’s spouse, children, and parents.

Common situations involving the FMLA include:

• The birth or adoption of a child
• Serious health conditions that leave the employee unable to perform his or her job, including illness and workplace injury
• The need to care for an immediate family member during a serious illness or injury
• Exigent circumstances arising from a family member’s covered active duty

If an eligible employee faces any of the above circumstances, FMLA allows them to take up to 12 weeks of unpaid leave each year. If an eligible employee must care for an ill or injured servicemember, the period of allowed leave increases to 26 weeks.

While this leave is unpaid, eligible employees continue to receive group health insurance coverage.

Leave granted under FMLA is also job-protected. This means that, after the period of leave, the employer must restore the employee to his or her previous position or to a comparable position.

Can an Employee Be Terminated While on Medical Leave?

Because FMLA is job-protected leave, the answer to this question seems obvious. And the simple answer is obvious. An employee cannot be terminated because they are on medical leave.

Simply put, the FMLA protects employees from termination related to their leave. This protection extends to employees who have recently returned from medical leave. Firing an employee shortly after she returns to work could be interpreted as retaliation.

Still, an employee can be terminated while on medical leave—or at any time before or after—for another valid reason.

In fact, unless the contract states otherwise, most employment situations are at will. This means that employers can fire employees for legal, non-discriminatory reasons.

Furthermore, the FMLA does not offer workers any extra job security beyond that of an employee who is not on leave.

Thus, the reason rather than the timing of the termination is the key factor.

Lawful Reasons for Firing an Employee

Valid reasons for employee termination include situations where:

• The company has experienced layoffs, and the position no longer exists
• The company would suffer undue financial harm if the employee returned to the previous position
• The employee fails to meet performance standards
• The employee has engaged in fraud, other crimes, or insubordination

These situations can occur while an employee is actively working or on leave.

As an employer facing these situations, therefore, you might wonder, “Can you fire someone on medical leave?” The answer is yes. If the above circumstances happen to coincide with an employee’s period of medical leave, the employee can be terminated.

Take the following example:

An employee requests 12 weeks of leave to care for his newborn. If he meets the requirements for FMLA, his employer must grant this request. If none of the above situations applies, moreover, the employee can expect to resume his normal duties at the conclusion of the three months.

Perhaps, though, demand for the company’s products unexpectedly and precipitously declines. The company must cut payroll to address the resulting budget shortfall. If the company follows proper procedures, it can terminate even those employees who are currently on leave.

Perhaps, in another scenario, the company will maintain current staffing levels. However, the employee in question has performed poorly. Perhaps he consistently received poor evaluations prior to the period of leave. Again, the FMLA does not protect the employee from being fired for poor performance even while he is on leave.

Finally, take a more extreme circumstance. Perhaps evidence of improprieties involving the employee surface while he is away. Once again, the company can take action, including termination, during the period of leave.

What Other Protections Can Apply to Workers Who Are Terminated While on Leave?

Besides the FMLA, other federal and state laws protect workers from unlawful termination. These include the Americans with Disabilities Act (ADA) and workers’ compensation laws.

The Americans With Disabilities Act (ADA)

On the federal level, the ADA protects disabled workers from discrimination. It also requires employers to provide reasonable accommodations to disabled employees. These accommodations can include additional unpaid leave. They can also include a more flexible schedule or the option to work from home.

Importantly, ADA accommodations must not place an undue burden on the employer. If a worker requires and requests a reasonable accommodation under the ADA, however, the employer must grant it.

Thus, an employer that fires a disabled employee for requesting an additional but reasonable period of leave would run afoul of federal anti-discrimination regulations.

Like the FMLA, however, the ADA continues to allow employers to terminate workers for valid reasons unrelated to their disability or leave. The ADA also permits termination when the nature of the position precludes the disabled individual from completing his or her duties.

Workers’ Compensation Laws

At the state level, workers’ compensation laws provide employees with protections when they are injured on the job. These protections can include medical expenses, lost wages, and disability payments. They can also include costs associated with rehabilitation and, if necessary, retraining.

Workers’ compensation claims can, thus, be incredibly costly. In 2017-2018, the average cost of a workers’ compensation claim was $41,003.

To avoid these costs, some employers may contemplate firing employees involved in workers’ compensation claims. However, these actions are illegal. Like the FMLA and ADA, workers’ compensation laws protect employees from retaliation.

Also like the FMLA and ADA, though, workers’ comp laws let employers manage their workforce. As with the FMLA and ADA, employers can fire employees for reasons unrelated to a workers’ comp claim. Moreover, they can take action for a valid reason even while the employee is out on leave.

Other State Laws

Some states, like California and Massachusetts, provide additional protections beyond those offered in the FMLA, ADA, and workers’ compensation laws.

In 2019, for example, the Paid Family and Medical Leave (PFML) Act went into effect in Massachusetts. Like other state laws, Massachusetts’ PFML expands FMLA protections. Unlike the FMLA, the PFML protects workers at companies of any size. It also defines the immediate family more broadly. Finally, unlike the FMLA, the PFML offers paid—rather than unpaid—medical leave.

Importantly, though, one similarity remains. Like the FMLA, the PFML protects employees from retaliation. An employer cannot terminate a worker for exercising his PFML rights.

Besides Massachusetts, other states and localities offering paid medical leave include:

• Connecticut
• California
• D.C.
• New Jersey
• New York
• Oregon
• Rhode Island

What Should You Do If You Believe You’ve Been Unlawfully Terminated?

Perhaps you’ve been terminated while on leave and believe your termination was unlawful. If so, it’s important to seek legal advice.

Situations involving employment laws and possible discrimination are complicated. Furthermore, every case is different. Only an experienced lawyer can sort through the complexities of your case.

Depending on your situation, it may be in your interest to contact a lawyer who specializes in a particular aspect of employment law. If you were terminated after filing a workers’ compensation claim, for example, you should contact a workers’ compensation attorney.

Doing so as soon as possible ensures that you can file a claim within any statutes of limitations. Like employment regulations, statutes of limitations vary.

For example, the statute of limitations for FMLA violations is generally two years. This period begins with the date of the last alleged violation. However, various state laws impose their own time limits. An experienced lawyer can help you formulate your case within these limits.

Medical Leave: Caring for Yourself and Your Family, While Protecting Your Employment Rights

Taking medical leave involves all the stresses of your own or a family member’s condition. Meanwhile, it imposes additional stresses. You might even wonder, “Can an employee be terminated while on medical leave?”

In fact, your employer cannot fire you for requesting leave. However, taking medical leave does not protect you from being fired for other reasons.

If you believe that your rights were violated, it’s important to seek legal advice. An attorney can evaluate your case and protect your rights.

As you navigate this and other situations in the workplace, count on our blog for the best advice.