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


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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.