Can an Employee Be Terminated While on FMLA? Legal vs. Illegal Firings

Yes, an employee can be terminated while on FMLA leave, but only for reasons that have nothing to do with the leave. The Family and Medical Leave Act gives eligible workers up to 12 weeks of unpaid, job-protected leave and generally requires the employer to hold the position open.¹ It does not, however, make you untouchable. A layoff that would have swept up your position anyway, documented misconduct, or a performance problem that was already being addressed before you asked for leave can all cost you your job in the middle of it.

When Firing During FMLA Leave Is Legal

FMLA protects your job from being taken away because you needed time off. It does not freeze every other employment decision. Three scenarios come up repeatedly.

Layoffs and Position Eliminations

The cleanest lawful termination is a company-wide layoff or restructuring that would have included your role regardless of leave. If 30 people in your division are cut and your position is one of them, FMLA does not create a special shield. The burden sits with the employer to prove you would have been let go even if you had been at your desk the whole time.² The same logic applies when a single position is eliminated for legitimate business reasons unrelated to your leave.

Pre-Existing Performance Problems

Filing for FMLA does not wipe the slate clean. An employee already on a performance improvement plan, with documentation building toward termination, can be terminated on the same trajectory that was in motion before the leave request. Courts look closely at whether the employer was already addressing the deficiencies before leave came into the picture. Timing is everything. What the employer cannot do is deny you FMLA paperwork or block your time off because you happen to be on a performance plan.³

Leave Fraud and Policy Violations

Obtaining FMLA leave through fraud — claiming a serious health condition that does not exist, for instance — is grounds for termination. Working a second job while on leave can also justify termination, but only if the employer has a uniformly applied policy against outside employment. Without such a policy in place before your leave began, the employer generally cannot punish you for working elsewhere unless the leave itself was obtained by fraud.⁴ Uniform enforcement is the principle: whatever rule the employer applies to you must apply equally to everyone else.

When Firing During FMLA Leave Is Illegal

A termination crosses the line when your decision to take or request FMLA leave played any role in the outcome. Federal law recognizes two categories of violations.⁵

Interference

Interference is any move that blocks, discourages, or punishes you for using your leave rights. The obvious version is denying a valid request or firing you right after you submit one. Subtler versions also count: transferring employees between worksites to push headcount below the 50-person threshold, restructuring your duties to make you ineligible, or trimming your hours to knock you below the 1,250-hour requirement.⁴ Even discouraging someone from using FMLA leave, without any formal denial, qualifies.

Retaliation

Retaliation is punishing you for having taken leave or for asserting your rights in some other way, such as filing a complaint or cooperating with an investigation. It includes termination, demotion, pay cuts, unfavorable schedule changes, and negative performance reviews timed suspiciously close to your return.⁵ Employers also cannot use your FMLA leave as a negative factor in promotion, bonus, or disciplinary decisions.⁴

How Courts Sort a Legitimate Firing From a Pretextual One

Most FMLA retaliation claims move through a three-stage, burden-shifting framework. Understanding it helps you gauge your case before you spend time and money on a lawsuit.

First, you have to establish a basic case: that you exercised your FMLA rights, that your employer took an adverse action like firing you, and that the circumstances suggest a connection. Timing is often the strongest piece of circumstantial evidence. A termination during leave or shortly after your return raises a natural inference.

Second, the burden shifts to the employer to offer a legitimate, non-retaliatory reason. Documented performance problems, a restructuring, misconduct, or any business justification unrelated to leave will do.

Third, the focus swings back to you to show the stated reason is pretextual, meaning it’s a cover story for retaliation. Common signs of pretext include inconsistencies in the employer’s explanation, similarly situated employees who were not terminated, a sudden shift in how your performance was rated right around the time you requested leave, and the employer’s failure to follow its own disciplinary procedures.² This is where most cases are won or lost. Employers who kept meticulous documentation of pre-leave performance issues are hard to beat. Employers who suddenly discovered “performance problems” right after a leave request are much more vulnerable.

What Happens to Your Health Insurance if You’re Fired Mid-Leave

During FMLA leave, your employer must keep your group health insurance active on the same terms as if you were still working. If the company was paying 80 percent of your premium before leave, it pays 80 percent during it.⁶ You still owe your share.

If you are terminated mid-leave, the loss of employer-sponsored coverage triggers COBRA eligibility, which lets you continue that coverage at your own expense.⁷ Separately, if you choose not to return to work for reasons other than a continuing serious health condition or circumstances beyond your control, the employer can recover the premiums it paid to maintain your coverage during leave.⁸

What About After the 12 Weeks Run Out

FMLA has a hard ceiling at 12 weeks (26 for certain military caregiver situations), but that ceiling is not always the end of your protection. If your condition qualifies as a disability under the Americans with Disabilities Act, additional unpaid leave may be a reasonable accommodation the employer must provide.⁹

The ADA standard is different. Your employer must grant additional leave unless doing so would cause undue hardship, and simply having already provided 12 weeks of FMLA leave does not automatically meet that bar. The employer should engage in an interactive process with you about how much more time you need and whether the company can accommodate it.⁹ FMLA and the ADA are separate laws with separate standards, and whichever gives you greater protection applies.¹⁰ Many states also have their own family and medical leave laws with longer leave periods, coverage of smaller employers, or protection for additional categories of workers.

What You Can Recover if the Firing Was Illegal

A successful FMLA claim can produce real financial recovery. The statute provides for several categories of damages:¹¹

Lost wages, salary, and benefits caused by the violation, plus interest.
Liquidated damages equal to the lost compensation plus interest, effectively doubling your recovery. A court can cut this down to just the lost wages and interest if the employer proves it acted in good faith and had reasonable grounds to believe its actions were lawful.
Reinstatement to your job, or front pay to cover future lost wages when reinstatement is not practical.
Reasonable attorney fees, expert witness fees, and litigation costs, paid by the employer if you win.

The liquidated damages provision is what gives FMLA claims their teeth. Many employment attorneys take these cases on contingency because the fee-shifting rule and the potential for doubled damages make them economically viable.

Steps to Take Right Now

If you believe your termination was connected to your leave, start building a paper trail immediately. Gather and preserve:

Your FMLA request forms and any medical certifications you submitted.
Emails, texts, and written correspondence with your employer about the leave.
Performance reviews from before and after your leave request.
The official termination notice and any reasons the employer stated.
Names and contact information for coworkers who witnessed relevant conversations or treatment.

You have two enforcement paths. One is filing a complaint with the U.S. Department of Labor’s Wage and Hour Division, which enforces FMLA and takes complaints in person, by mail, or by phone at any local office. The other is a private lawsuit. The statute of limitations is two years from the last action you believe violated the FMLA, or three years if the violation was willful, meaning the employer knew or showed reckless disregard for whether its conduct was unlawful.¹² These deadlines are firm. If you are uncertain about pursuing a claim, at least consult an employment attorney before the clock runs out. Most offer free initial consultations, and the fee-shifting provision means you generally will not need money upfront to bring a case.

1
U.S. Department of Labor. Family and Medical Leave Act
2
eCFR. 29 CFR 825.216 – Limitations on an Employees Right to Reinstatement
3
U.S. Department of Labor. Fact Sheet 28 – The Family and Medical Leave Act
4
eCFR. 29 CFR 825.220 – Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights
5
Office of the Law Revision Counsel. 29 USC 2615 – Prohibited Acts
6
eCFR. 29 CFR 825.209 – Maintenance of Employee Benefits
7
U.S. Department of Labor. FAQs on COBRA Continuation Health Coverage for Workers
8
Office of the Law Revision Counsel. 29 USC 2614 – Employment and Benefits Protection
9
U.S. Equal Employment Opportunity Commission. Employer-Provided Leave and the Americans with Disabilities Act
10
eCFR. 29 CFR 825.702 – Interaction with Federal and State Anti-Discrimination Laws
11
Office of the Law Revision Counsel. 29 USC 2617 – Enforcement
12
U.S. Department of Labor. Family and Medical Leave Act Advisor – Enforcement of the FMLA