Can an employer fire you to prevent you from taking leave under the Family and Medical Leave Act?

Say you need to take leave for a serious health condition and wish to exercise your right to take that leave under the Family and Medical Leave Act, but your employer fires you before you can do so. Has your employer done anything unlawful? Do you have any protection under the law?

The Family and Medical Leave Act (FMLA) gives gives employees the right to twelve weeks of job-protected, unpaid leave in any twelve-month period for certain family and medical circumstances. This leave taken under the FMLA is referred to as FMLA leave.

Thus, an employer must give its employees leave when they request it under the FMLA. Further, an employer cannot fire an employee on FMLA leave or fire an employee because he is about to take FMLA leave.

The FMLA covers employers who have employed 50 or more employees for at least twenty weeks. Unlike with Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, employees for purposes of the FMLA are defined using the payroll method—that is, if a worker is on the payroll, he is an employee.

However, not all employees are entitled to FMLA leave. The FMLA only grants rights to those employees who work for a covered employer, who have been employed by that employer for at least twelve months, who has been employed for at least 1,250 hours of services for that employer during the previous twelve months, and who has been employed at a worksite where that employer has 50 or more employees within 75 miles of the site.

The FMLA is enforced by the Department of Labor, and, while giving employees rights to take leave for serious health conditions, it also prohibits employers from interfering with those rights.

Under the FMLA, an employer cannot interfere with or deny an employee’s exercise of his FMLA rights. The FMLA creates substantive rights for employees and any employer who denies those rights or prevents an employee from exercising those rights violates the FMLA.

For example, an employer cannot fire an employee for taking FMLA leave. Similarly, an employer cannot fire an employee because the employee is about to take FMLA leave—that is, an employer cannot preemptively fire an FMLA-eligible employee.

An employer also cannot refuse to restore an employee to his job after he takes FMLA leave. For example, an employee who has his position filled during his 12 weeks of FMLA leave has a claim against his employer for violating the Act. A similar example involves employers who have attendance policies that provide for termination after a certain number of absences. An employee who takes FMLA leave cannot be terminated even though his absence violated his employer’s attendance policy.

While there is no explicit provision in the FMLA that prohibits an employer from discriminating against an employee who exercises his FMLA rights, courts and federal regulations both state that these practices violate the Act. Thus, under the FMLA, it is unlawful for an employer to discriminate against an employee in hiring, firing, pay, or promotion for exercising his right to take leave under the FMLA. So, an employee cannot be passed over for a promotion because he took FMLA leave, and an employee cannot be demoted for taking FMLA leave.