The Limits of FMLA Protection

How the Family and Medical Leave Act Will and Won’t Protect You

In 1993, the U.S. Congress passed, and President Bill Clinton signed, the Family and Medical Leave Act (FMLA), which allows workers to take unpaid leave from their jobs for up to 12 weeks under certain circumstances without the risk of losing their employment. The FMLA applies to private employers with at least 50 employees, all government agencies, and all public and private elementary and secondary schools regardless of the number of employees. Covered family members (i.e., those relatives for whom a person may take FMLA leave) include an employee’s spouse, child, or parent, including adopted children, stepchildren, foster children, and foster parents.

What Types of Activity Are Permitted Under the Family and Medical Leave Act?

A worker may be granted FMLA leave for a number of reasons, including:

• The birth of a child
• The care of a child under the age of one
• The adoption or foster parenting of a child, including care for that child for the first year after placement
• The care of a covered family member (spouse, child, or parent) who has a serious health condition
• Personal health issues experienced by the worker that make it impossible for them to perform essential aspects of their job
• Any “exigency” arising out of the fact that the worker’s covered family member is on active duty in the United States military

If a worker has a covered family member who suffers a serious injury or illness while serving in the armed forces of the United States, the worker may take up to 26 weeks of unpaid leave over a one-year period and have their job protected under the FMLA.

Under the provisions of the FMLA, a qualified worker must be given their old job back at the end of FMLA leave or placed in an equivalent job with equivalent pay, assignments, and benefits. An employer may not engage in any retaliatory or disciplinary action against a worker for exercising the legal right to take FMLA leave. A worker may not be penalized for excessive absence or low productivity resulting from FMLA leave.

When Can You Be Subject to Termination or Other Job Sanctions While on FMLA Leave?

Under the FMLA, it is permissible for a covered company to terminate an employee while on FMLA leave if that worker would have been terminated regardless of the FMLA leave. For example, if an entire plant or department is shut down and all employees laid off, it is not a violation of the Family and Medical Leave Act to lay off a worker on FLMA leave.

Furthermore, if you engage in wrongful conduct, either related to your FMLA leave or otherwise to your employment, you may be fired. For example, if you fabricate any of the information on the forms you submit to support your request for FMLA leave, you thereby commit fraud and can be terminated, even though you are on FMLA leave. Additionally, if you allege that you need to take leave to care for a covered family member who is bedridden or otherwise in need of care, and your employer discovers pictures online of you and that covered family member out dancing or doing things an incapacitated person couldn’t do, you can also be terminated for fraud.

Your employer can also terminate you for things that happened at work before you started your leave. If you failed to meet certain quotas or other requirements, or if your pre-leave job performance was substandard, FMLA leave will not prevent your termination.

Summary

The Family and Medical Leave Act (FMLA) offers certain workers job security when they need to take unpaid leave to tend to a medical or family issue. The FMLA allows you to take up to 12 weeks of unpaid leave and return to your old job (or a comparable one) when you return. Covered family members include your spouse, children, and parents. An employer may not terminate you in retaliation for taking FMLA leave but can lay you off as part of a larger downsizing or layoff. You can also be fired for fraud or other wrongful conduct at work, either before or during your leave.