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The F Stands for Fired: How to Handle an FMLA-Related Termination

October 12th, 2015 Christopher Davis

Have you been fired in connection with a long-term illness or disability? A family member’s illness or disability? A pregnancy, maternity leave, or even an adoption?

You’re not alone. FMLA-related terminations are among the most common employment law violations every year—but many people still aren’t aware that their job is protected under the FMLA.

The Family and Medical Leave Act, or FMLA, ensures job-protected, unpaid leave for medical and/or family-related circumstances requiring absences from work. You may have heard the FMLA referred to as the “maternity leave law”; however, the Act does much more than guarantee time off for new mothers. It allows eligible employees to take up to 12 weeks of unpaid leave during any 12-month period to attend to 1) the serious health condition of the employee, parent, spouse, or child; 2) for pregnancy or the care of a newborn child; or 3) for the adoption or foster care of a child. For individuals who meet the qualifications, guaranteed leave with job protection is a federal right.

Since the FMLA applies to everyone, and since most people experience a need to take FMLA-qualifying leave at some point in their adult professional life, FMLA-related terminations are very common. Despite this, many employees, if not most, misunderstand their rights when facing a need to take FMLA-qualifying leave, or in exercising their right to take FMLA leave.

In our experience, the workplace quickly becomes a strategic battlefield when an employer makes attempts to limit an employee’s FMLA rights. Employees sense that they may be fired illegally and start to gather important emails, and employers (either aware of the risk they are generating or not) aggressively push to generate a record of performance failure.

If you think that you may be terminated explicitly because you have requested FMLA leave, or if you feel that you are quietly being set up for termination in retaliation for having requested or taken FMLA leave, the key to successfully navigating the workplace minefield as your employer’s intentions become known to you is recognizing whether a claim exists for an FMLA violation. Knowledge is power, and catching your employer in the act of violating your FMLA rights can give you the upper hand in any negotiation over saving your job or your entitlement to monetary relief if you are fired.

So here’s what our firm thinks you should know:

  1. You do not need to specifically request FMLA leave in order to be protected by the law.

When you submit a request for time off to your employer, you don’t need to say any magic words for your leave period to qualify as protected under the FMLA. As long as the requirements for protection are met, you will still have a legal claim if you are fired for taking leave, or even just submitting the leave request. If you’re unsure whether your specific leave might qualify under the FMLA, please contact our office here for a complimentary consultation.

  1. Generally, employees must be employed for one year in order to both qualify for FMLA leave and be protected from FMLA-related termination.

Unfortunately, if you’ve only been at your workplace for a short period, it is unlikely that you will qualify for leave under the FMLA. Additionally, in most cases, employees must have worked a minimum of 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within a 75-mile radius. However, both private- and public-sector companies are covered, and statistically, both small and large employers are equally likely to provide full FMLA coverage—approximately 80% of each will do so.

  1. Failing to follow your company’s policies for taking leave, requesting leave, or returning to the workplace can, under certain circumstances, prevent an employee from being able to assert legal claims for a termination that is otherwise clearly related to FMLA leave.

Even if you have a strong case for an FMLA violation, failing to follow the proper procedures for requesting and taking leave can harm your ability to seek legal reparations. So, as a protective measure, make sure to closely follow your employer’s policies in case a termination later occurs and appears to be FMLA-related. Before you go on leave, also determine whether your employer requires you to check in with HR or supervisors while on leave. You are not obligated to work while on FMLA leave, but employers can require an employee to report to management periodically.

  1. Provide medical certification and be as specific as possible about when you are likely to return to work.

Providing medical certification of your reason for requesting leave can help you to argue your case more effectively later on, if it becomes necessary. If an employer does not have a prescribed form for providing medical certification for leave but requests proof of the medical condition related to your leave request, use one of the model forms proposed by the federal Department of Labor, which can be found here for the employee’s own medical condition, and here for a family member’s medical condition. When making the request, be sure to include the date you are likely to return to employment, since a lawsuit for an FMLA-related termination can be dismissed if a planned return date is not specified, or a possible return date is not provided.

  1. Be sure to make preparations for returning to work once your leave is finished, including providing any necessary “fitness for duty” certifications or requesting any necessary reasonable accommodations under the Americans with Disabilities Act.

Be sure to request any reasonable accommodations you may need upon returning to work—for example, if you have disabling physical symptoms that persist. Your employer is required to make workplace accommodations for you if you have disabling symptoms upon your return from medical leave. Many employees, however, forget to request those accommodations when they are preparing to return to work. Employers often require employees to make these requests to a particular HR office or employee, and require the use of particular forms. By the time you return to work, if you have disabling conditions which make your job performance difficult,  not having accommodations in place which will make your life easier may give your employer the impression that you cannot perform your duties, returned too early, or failed to appropriately prepare for your return.

Also, employers are permitted to require you to fill out a “fitness for duty” certification as a prerequisite of reinstatement to your position. However, if your employer requires certification, they must inform you and provide you with either a certification form or guidelines for certification requirements. Under certain circumstances, employers who advise employees of this requirement may deny reinstatement if the employee fails to provide certification, or may delay reinstatement until the certification is submitted.

  1. Be aware that requesting the benefit of short- or long-term disability insurance through your employer or employer-sponsored benefits program is not the same as requesting unpaid leave from your workplace for a disabling medical condition.

While some employer benefit programs may provide disability insurance benefits which pay an employee’s salary when they are out on leave, qualifying for disability insurance benefits is not the same as requesting permission to leave the workplace. Employees who are applying for short- or long-term disability benefits must also separately apply for FMLA or FMLA-qualifying leave through their employer.

  1. If your leave exceeds 3 months (12 weeks), your employer may lawfully replace you or eliminate your position under the FMLA.

After 12 weeks of leave, you are no longer entitled to job protection under the FMLA. However, it is possible that you may still be protected under the Americans with Disabilities Act (ADA), or other city and state disability discrimination statutes. In general, even if an employee is forced to take a longer period of leave because of the severity of his or her FMLA-qualifying medical condition, the employee’s boss may still legally decide to terminate them. If you suspect your leave may last longer than 12 weeks, it is best to consult with an attorney immediately.

  1. Leave need not be taken in a single 3-month chunk.

FMLA leave can actually be taken over a period of months or even years, intermittently. Employees with ongoing doctors’ visits or procedures, and those with chronic conditions requiring periodic hospitalization or time off, are also eligible for and entitled to FMLA leave. Terminating an employee for taking time off for medical visits or procedures related to FMLA-qualifying conditions or illnesses that require ongoing care is also illegal.

  1. Know that there are certain signs that may indicate when an employer is preparing to fire an employee for FMLA-related reasons.

By paying close attention, employees may actually be able to sense when there is a likelihood of termination related to their FMLA leave. If your duties are taken away from you while you are on leave, or if a replacement employee is hired or positioned to take your job, that is a red flag that preparations may be in the works for your termination. If these or similar things occur proximately to your request for leave or the leave itself, you may have legal rights and good evidence in the event of a litigation.

Above all, know that the law builds in certain presumptions for employees fired shortly after they request, take, or return from FMLA-qualifying leave. So, even if you’re unsure whether your FMLA leave was the reason for your termination, if you were fired shortly before or after you took leave, that’s a good sign you may have legal rights. Even if your employer provides reasons for your termination that are unrelated to your leave, such as poor work performance or behavioral issues, you could still have a case. If the reasons given are conflicting, unjustified, or unsubstantiated, your employer’s explanation for your termination is referred to as “pretext” under the law, meaning that it’s simply an excuse for your FMLA-related termination.

Employers’ tendency to disguise their motives surrounding FMLA-related terminations make these some of the most difficult employment law violations to resolve. Unlike with discrimination- or retaliation-related terminations, employers have more leeway to fire employees for lawful reasons directly related to the employee’s protected status, making FMLA-related terminations unfortunately very common.

Because of the complexities of navigating an FMLA termination issue, it is important to seek legal help as early as possible. Call (646) 430-7930 or fill out a contact form here for advice or a free legal consultation from our firm.