Can an employer fire you if you’re on medical leave?

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Can an employer fire you if you’re on medical leave?

My sister got diagnosed with cervical cancer. She has been off work for a month because of her doctor appointments and cancer treatments. Today she got a letter in the mail stating that she was no longer employed and that she had health insurance through the end of the month.

Asked on May 17, 2017 under Employment Labor Law, Wisconsin

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If your sister applied for and receive leave under the FMLA (Family and Medical leave Act), then her discharge after only a 1 month out was illegal. However, absent that, if she was out and did not use (or used up) any available PTO (vacation time and/or sick days), then she could have been terminated due to excessive absences. While unfortunate, it is legal.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If her employer was covered by FMLA leave (at least 50 employees within a 75-mile radius) and she was eligible for it (worked there at least one year; worked at least 1,250 hours in the past 12 months) *and* she took/used FMLA leave, they could not fire her while she was on leave, so long as her total FMLA leave was 12 weeks or less. If she was on FMLA and was fired while on it, she could contact the state or federal department of labor to file an unlawful retaliation (for using leave) complaint.
But there is no right to take time off for a medical condition or medical care unless you are eligible for and use FMLA (and you employer is covered). (WI has its own similar, but less generous, medical leave law; if you were not able to use FMLA Leave, WI's leave would not help you.) If she missed a month of work without using FMLA leave, that was an unauthorized absence and she may be fired.


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