Can your employer terminate you while on FMLA?

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Can your employer terminate you while on FMLA?

Currently asked to fill out FMLA papers. Before having surgery was told was on probation, however became sick 2 months ago. I received an evaluation in 3 months ago. The evaluation did not give a timeframe on fixing errors; errors that were not discussed throughout the year. I was given supervision and given 30 days to fix them. I had surgery and experienced complications this month. I received phone call that PTO was running out and that I needed to go on FMLA and a temp would be hired in my place. although all major projects were completed prior to leaving for surgery.

Asked on March 12, 2016 under Employment Labor Law, New Jersey

Answers:

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

Answered 5 years ago | Contributor

FMLA protects an employee from being fired for excessive absences. It does not, however, protect them from being fired for reasons that are separate and apart from their leave. Accordingly, if you would have been fired anyway, you can be fired while on FMLA. While many employers will choose to wait until the FMLA time is up before notifying an employee of their termination, some do not. It is an matter of company policy and not the law.


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