Can Workers Be Fired For Taking Family Leave? - The Chicago Employment Law Blog

The Chicago Employment Law Blog

Can Workers Be Fired For Taking Family Leave?

It's the anniversary of the Family Medical Leave Act which entitles eligible employees to unpaid leave should certain personal or family health issues arise.

But can workers be fired for taking family leave? Generally speaking, you can't get fired or demoted for taking FMLA leave.

But if you do get fired, your claim of FMLA retaliation will depend on a number of factors, such as the following:

  • FMLA eligibility. Not every employee is entitled to FMLA leave. Only large employers with 50 or more employees are covered by the FMLA. In addition, the employee must have been employed with the company for 12 months and worked at least 1,250 hours prior to taking leave. The employee must also have a FMLA-qualifying reason to take leave. If you don't meet these requirements, you likely are not protected by the FMLA.
  • Reason for termination. You are not guaranteed to prevail in an FMLA retaliation lawsuit simply because your FMLA leave and termination date overlap. For example, a man in Utah lost his FMLA retaliation case against his employer when he was fired "for cause" while he was on leave for childcare. The general rule of thumb is that law does not forbid firing or laying off an employee who is on FMLA leave if the action would have occurred anyway had he or she not been on leave. So, if you got fired for a legal reason -- which may include taking more time off than your FMLA leave permits -- you might be out of luck.
  • Pretext. If an employer states a non-leave reason for your termination, but something smells kind of fishy, the "legitimate" reason might be pretext for unlawful termination. For example, if you suddenly receive poor performance evaluations while you are on leave or upon you return, that could be a sign of unlawful FMLA retaliation. In court, your employer will assert a nonretaliatory motive (such as poor performance) and then you must provide evidence showing that the asserted motive is "pretext," or a cover-up, for the real reason behind your getting fired: that you took FMLA leave.

If you suspect that you faced employment repercussions because you took FMLA leave, you'll want to consult an experienced employment law attorney to explore potential legal remedies.

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