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Can I lose my job for taking an FMLA leave?

| Sep 10, 2020 | Employment LAw |

Some eligible employees have second thoughts about the Family and Medical Leave Act (FMLA). They may have pondered whether to take an unpaid leave from work but worry about the possible ramifications stemming from the leave. Mainly: Will I lose my job?

Through the FMLA, eligible employees are allowed up to 12 weeks of unpaid leave each year. Two crucial aspects of this act are that during the leave, employees’ group health benefits remain in place and upon returning to work, the employees secure the same or an equivalent job. Employers cannot terminate an employee for taking FMLA leave. If they do, they face legal claims of interference and retaliation.

Protections limits exist

However, protection limitations do exist. Employees are not protected from situations that would have affected them even if they had not taken FMLA leave. Examples include a cut in work hours or the elimination of overtime or certain shifts.

Also, employers may deny restoring “key” employee status to some. This label refers to salaried employees who are among the 10% highest-paid employees at the company. The only ways an employee can get away with this is if they prove that the employee’s reinstatement at the higher salary would prove financially detrimental to the company; notify the employee that his or her key status has been denied; and provide him or her with a “reasonable opportunity” in returning to work.

When termination process predates leave

In addition, employers can fire someone for reasons unrelated to FMLA. In some cases, such as in reduction-in-workforce matters, the termination process was already in the works before the employee took FMLA leave. In these situations, termination was inevitable even if he or she had not taken FMLA leave.

Or, perhaps, predating the leave, the employee consistently ignored supervisor orders, had many job performance issues, was consistently tardy for work or was under investigation for embezzlement and sexual harassment. Courts will rule in favor of employers as long as they prove the employee deserved termination.