FMLA is one of the most frequently misunderstood employment laws, especially when questions arise about terminating an employee who is currently on protected leave. Many employees believe they cannot be fired under any circumstances while on FMLA, while many employers worry that any termination during leave is automatically considered retaliation. In reality, the law protects employees from adverse action because of their leave, not from valid, unrelated employment decisions. Understanding this distinction is essential for employers navigating this sensitive area.
Understanding What FMLA Actually Protects
At its core, FMLA protects an employee’s right to take unpaid medical or family leave without fear of retaliation. The law ensures job restoration to the same or an equivalent position once the leave period ends, provided the employee can perform the essential duties of the role. However, this protection applies only when the employee meets eligibility criteria and adheres to procedural requirements. It does not override business needs, performance expectations, or workplace policies unrelated to the leave itself.
It is important for employers to recognize that FMLA does not create immunity from lawful termination. If an employee would have been fired regardless of taking leave, that action may still be legal as long as the reason is documented and genuinely unrelated to the leave request. Employers who understand this distinction are better positioned to respond consistently and confidently when operational needs collide with employee absences.
When Termination During FMLA May Be Legal
A termination may be lawful during FMLA leave if the employer can demonstrate that the decision stemmed from circumstances such as position elimination, documented performance issues, or policy violations unrelated to the employee’s health condition or absence. For example, if a company restructures and an entire department is impacted, an employee on FMLA is not exempt from those decisions. Similarly, long-standing performance issues that were documented before the leave can support a legitimate termination during the leave period.
The key factor is whether the decision would have occurred even if the employee had not taken FMLA leave. Courts consistently evaluate whether the employer can provide objective evidence that the termination was non-retaliatory. Employers who maintain thorough, date-stamped documentation, including performance reviews, corrective actions, and restructuring plans, are typically in a stronger position to defend their decisions if challenged by the employee or by a state agency.
When Termination Is Not Legal During FMLA
Termination becomes unlawful when it is motivated, even partially, by the employee’s use of FMLA leave. If the employer cannot produce evidence of a legitimate reason or if the timing suggests the leave played a role in the decision, the action may be considered retaliatory. This includes situations where performance concerns are documented only after the leave begins or where an employer appears to fast-track disciplinary action because of the absence. In such scenarios, the lack of prior documentation can be harmful to the employer’s position.
It is also illegal to terminate an employee simply because their absence creates operational challenges. While FMLA can be inconvenient or disruptive, the law requires employers to work through those difficulties without penalizing the employee. An employer who expresses frustration about the leave or remarks that the absence is too burdensome can unintentionally create evidence of retaliatory intent. Maintaining professionalism and adhering strictly to documented facts is essential when navigating employment decisions during active leave.
The Importance of Documentation and Communication
Accurate and complete documentation is the backbone of lawful employment decisions during FMLA. Employers must ensure that performance concerns, attendance issues predating leave, and organizational decisions are clearly recorded and not created retroactively. When documentation is vague or inconsistent, unemployment agencies and courts may infer that the leave influenced the termination. Employers who proactively maintain detailed records find it easier to demonstrate that decisions were independent of FMLA.
Clear communication with employees is equally important. Employers should explain expectations regarding medical certification, intermittent leave processes, return-to-work requirements, and job duties. Miscommunication often leads employees to believe that leave played a role in their termination, even when it did not. Many employers mitigate these risks by coordinating their FMLA workflows through structured platforms or third-party administrators such as AbsencePlus, which helps ensure consistency and clear documentation across every leave event.
Evaluating Essential Job Functions After Leave Begins
Sometimes an employee’s medical condition changes while they are on FMLA, and they may not be able to perform the essential functions of their position even after their leave period expires. When this occurs, termination may be lawful if the employee cannot safely return to work and no reasonable accommodation is available under the ADA. This situation often requires careful assessment because FMLA and ADA protections overlap, and employers must consider both laws before making decisions.
Employers must avoid assuming an employee cannot return simply because of the seriousness of their condition. Evaluations must be based on objective medical information, not assumptions or frustration about the length of the leave. When employers document the interactive process, consider accommodations, and communicate opportunities for modified duty, they are better protected legally and better able to demonstrate that the termination resulted from inability, not retaliation.
Termination Under FMLA Is Possible, But It Must Be Handled Correctly
Employees can be fired while on FMLA, but only when the termination is fully unrelated to their leave and supported by clear, consistent documentation. Employers who understand the legal boundaries, maintain organized records, and communicate transparently are best positioned to navigate these situations without violating federal protections. With the right approach, organizations can balance compliance requirements with legitimate business needs while supporting employees during critical life events.
