Can my employer lay me off while I am on FMLA leave?

Question: I had abdominal surgery several weeks ago, and I’m taking FMLA leave from work. My doctor said I would need eight weeks off, then would be able to work only part time for four more weeks. I just got an email from my manager saying that the company is struggling financially and will have to lay some people off. Our department has to lose two positions, and there’s a chance my job might be one of them. Is this legal? I thought the FMLA gave me the right to get my job back when my leave is over.

Answer: It is not illegal for your employer to lay you off during your FMLA leave, but it is illegal for your employer to lay you off because of your FMLA leave. In other words, whether your employer can lay you off without legal liability depends on its reasons for doing so.

You are correct that the federal FMLA (Family and Medical Leave Act) gives employees the right to be reinstated once their leave is over. After all, the right to take time off isn’t worth much if you don’t have a job to return to afterwards.

However, the FMLA doesn’t give you any greater right to your job than you would have had if you hadn’t taken leave. If you would have lost your job whether or not you took time off, the FMLA doesn’t protect you.

In your situation, the company can lay you off while you are on leave as long as it would have made the same decision if you had not used the FMLA. So, if your company decides to lay off the ten employees with the least seniority, and you happen to be one of them, that wouldn’t violate the FMLA. Similarly, if your company decided to outsource the functions of your department, and your whole department is laid off, the FMLA would not give you the right to demand your job back anyway.

On the other hand, your company may not lay you off because you took FMLA leave. If, for example, you were not included in the original layoff list, but your manager added you to retaliate against you for taking time off, that would be illegal. Similarly, if the company says it is laying off employees with the least seniority, and you are included in the layoff despite having more seniority than employees who will keep their jobs, that would give you reason to question your employer’s true motives.

The company also may not use your FMLA leave indirectly as a reason to lay you off. For example, if all employees had to complete a written self-evaluation form for the company to consider in making its layoff list, and you didn’t complete a form because you were on leave, it would not be legal for the company to hold that against you. Or, if the company chooses employees for layoff based on a number of performance factors, including attendance, and your FMLA leave is counted against you in this category, that would also be illegal.

As you can see, determining whether your FMLA leave played a role in layoff decisions can be complicated. You’ll need to know all the facts behind your employer’s choices to find out if your termination was illegal. For that, you will definitely need an experienced employment lawyer.

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