Can I be terminated for excessive absenteeism for using FMLA leave ?

UPDATED: Sep 30, 2022

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Can I be terminated for excessive absenteeism for using FMLA leave ?

I’ve been working for my current employer for 10 years but have had to have 3 major surgeries in the last 4 years, being off 8-12 weeks each time. Now I’ve just found out that I need to have another surgery but a year ago when i came back from my last surgery I was told this is my last chance and that no other company would put up with this. So now I’m scared when i tell them they are going to let me go. Are these threats legal and can they let me go if I have to take leave again for a surgery? Unfortunately I have to have this done either way but want to know what to expect and if I have any recourse if I am let go after I was threatened last time.

Asked on January 14, 2017 under Employment Labor Law, Wisconsin


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, you cannot be terminated for excessive absenteeism for using FMLA leave; assuming that you and your employer are both covered by the Act, the law specifically prohibits retaliation against you for using it and protects your right to FMLA leave. If they had been in the process for terminating you for non-FMLA absences before you applied for FMLA absence, they could continue--applying for FMLA does not protect you from legitimate grounds for termination, it only means you can't be terminated for the FMLA itself. And, of course, if you have *any* unauthorized absences in the future (e.g. any absences without using FMLA or paid time off), they can terminate you for those.

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