Can my employer fire me or lay me off after FMLA leave because they filled my position?

My employer asked me to come in and talk to him because,

Asked on June 17, 2016 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If the company was covered by FMLA (at least 50 employees within a 75-mile radius), you were eligible for it (worked there at least a year; worked at least 1,250 hours in the last 12 months), your condition or need was covered by FMLA, and you applied to use FMLA, then they can't termiante you because they filled your position. It would be legal to flll the precise position you'd had, then give you a more-or-less equivalent one (very similar wages or salary; similar level of senior or authority)--the employer does keep some flexibility under FMLA--but they can't simply elect to fill your position with someone else. You have to be allowed to return to the same or comparable position.
You could be laid off, IF a lay off had been in the  works anyway (e.g. a downsizing or restructuring) and would have occured to you but for FMLA--in that case, FMLA might delay the layoff until after the leave, but doesn't prevent it. Or you could be fired "for cause" IF there was some valid reason (e.g. excessive absenteeism, insubordination, violating company policies, etc.) and you would have been fired already except it was temporarily put on hold by the FMLA leave. But they have to be able to prove that these things were happening anyway, and can't just use them as pretenses or excuses. 
(I suppose you could also be fired for something which occured while you were on FMLA, such as if while on leave, you said something completely inappropriate to a manager or sexaully harassed someone you work with, but that's obviously a very rare case.)
If you are let go and do not believe that it was justified, contact the dept. of labor to file a complaint.


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