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Can I Be Laid Off While I Am on FMLA Leave?

Posted on June 24, 2020

The Family and Medical Leave Act (FMLA) extends several important protections to American workers. Under this law, you can take unpaid leave for up to 12 weeks under specified family and medical reasons and up to 26 weeks for military caregiver reasons. These protections allow you to keep your position — but your job may still be at risk under certain circumstances.

What is FMLA Leave?

FMLA allows you, as an eligible employee, to take unpaid leave under certain circumstances. Specified reasons for FMLA leave include the following.

  • Giving birth to a child
  • Developing serious health condition that affects your job performance
  • Adopting or fostering a child
  • Caring for a child, spouse, or parent with a serious health condition
  • A qualifying situation arising out of the fact that your child, spouse, or parent is an active duty service member
  • Caring for a service member who has a serious injury or illness if you are his or her parent, spouse, or child

In addition to the option of taking unpaid leave, you are eligible for the following protections during and after FMLA leave.

  • Continuation of your group health insurance benefits
  • Substitution of paid leave for unpaid leave
  • Maintenance of other benefits, such as accrual of paid leave
  • Restoration of the same job or an equivalent job upon return

Company Lay-Offs and FMLA Leave

A lay-off occurs when an employer cuts a certain number of jobs from the workforce due to business reasons, leading to the temporary suspension or permanent termination of employment. Your employer can lay you off while you are taking FMLA leave, but he or she cannot terminate your position because of your FMLA leave.

Under FMLA, you have the right to return to your position after your leave is over. However, you do not receive job protection under this act if your employer would have terminated your position regardless if you took leave or not. For example, if your company decides to terminate the positions of 20 junior employees to save money and you are a junior employee, the FMLA does not protect you.

However, it is illegal for your employer to retaliate against you for taking this federally protected leave. If you suspect that you were not originally on the list of lay-offs and believe your employer added you to the list as a way to retaliate against you, you may be eligible for legal action.

In addition, your employer cannot use your FMLA leave as justification for any lay-off or termination. For example, if the company asks all employees during your leave to sign a non-disclosure agreement or risk termination, the company cannot fire you or lay you off for not signing a form you were not present for. If your employer cites attendance as a reason for company-wide layoffs and counts your FMLA leave as evidence of your absence, this is also an illegal action.

What to Do If You Believe Your Employer Violated FMLA

If you recently took FMLA leave and lost your job, you may be able to collect monetary damages for the losses you incur as a result of this action. In particular, you may be eligible for job restoration or financial compensation through a lawsuit in civil court.

Contact an employment attorney as soon as possible if you suspect your employer terminated your position due to your FMLA leave. Your employer cannot violate your FMLA rights for any reason, even if you sign an agreement waiving your right to file a lawsuit against him or her. Your Arizona employment law attorney will guide you through your legal options and help you understand your optimal path to justice.