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Can I be fired while on family or medical leave?

On Behalf of | Jul 12, 2021 | Family And Medical Leave Act (fmla), Wrongful Termination

The Family and Medical Leave Act (FMLA) is a federal law that protects us when we need to spend time with our families. It is your right as an employee to get up to 12 weeks of unpaid leave when your child is born, you adopt or you or one of your family members suffer from a serious health condition. The law states that your employer cannot retaliate against you if you take family or medical leave. However, there could be some consequences if you fail to submit the proper documentation.

An employee’s right

You have the right to take family and medical leave if you have worked for at least a year and a total of 1,250 hours. If you have the requirements, you can have 12 weeks of unpaid leave. However, for your employer to grant and certify your leave, you need to do the following:

  • Provide timely notice of the need for leave
  • Provide certification to support the need for leave
  • Provide periodic status reports
  • Provide fitness-for-duty certification

It is the employee’s responsibility to provide a complete and sufficient certification to the employer. If you fail to submit the appropriate documentation to your employer, they might deny your leave and then the days you did not go to work will count as excessive absences. In this case, they could fire you.

Notice time

You also need to be careful with the specific timeframes for family and medical leave. The time frames for the request of leave will depend on whether the leave was foreseeable or not.

  • If the leave is foreseeable, you must make the request at least 30 days before the leave. If this is not possible, the same or the next day after you learn the need for the leave. You must also send the documentation before you start your absence and within 15 days after giving notice of your leave.
  • If the leave is unforeseeable, you must send your request for leave 15 minutes before your shift or one hour before the shift in a 24/7 operation. You also need to send your documentation within 15 days of the start of your absence.

Your employer may deny your leave if you don’t send the documentation at the right time and in the right form. Their denial of the family and medical leave would result in an unauthorized leave that will be subject to disciplinary actions.

Employer’s duty

If you comply with the required documentation, your employer cannot retaliate against you for taking family and medical leave unless you don’t show up at work after the 12th week. Once you get back to work, they will have to offer you the same or a similar position to the one you had before. If your employer fires or discriminates you for exercising your rights under the FMLA, you can file a lawsuit against them.


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