Can you be terminated while on FMLA?

UPDATED: Jun 17, 2011

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Can you be terminated while on FMLA?

While on FMLA leave, I was informed that my contract was being terminated for violation of the terms. However FMLA leave states you must be returned to the same job and position with the same rate of pay; terminating my contract meant a different position and change in pay for me.

Asked on June 17, 2011 under Employment Labor Law, Illinois


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

Answered 11 years ago | Contributor

If an employee is out on FMLA then they cannot be fired or have a change in position/salary simply for being out.  That having been said, if their termination/job change is due to another reason unrelated to the one that they were out on leave for, then yes it is legal. In your case, according to your employer, your situation was caused by job performance issues. A legitimate reason, whether or not FMLA was involved.

As a general rule an employer can hire/fire an employee for any reason or no reason at all.  That is, so long as the employee is an "at will" employee.  Therefore unless you had a union agreement to the contrary, or this action violated company policy, or was the result of discrimination, you have no claim. Also, you may be afforded protection by the terms of your employment contract. However you were in violation of that contract. Or at least that is what your employer alleges. Without more facts of the case it's hard to be certain. At this point you should consult with an employment law attorney and explain the details of your situation. Be sure to bring a copy of your contract with you. 

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.

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