Can an employee be laid off while out on FMLA?

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Can an employee be laid off while out on FMLA?

A friend of mine was injured on 07/17. They had 5 days of sick time and then started FMLA on the 07/26. Her company laid her off on10/14. According to my calculations, the dates are currently being verified, her 12 weeks is over 10/15. Does she have any legal recourse?

Asked on October 14, 2010 under Employment Labor Law, Ohio

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Your friend should speak with an employment law attorney, since much will depend on the exact circumstances, which the lawyer can evaluate. In brief: you may not be laid off because you took FMLA leave. You also may not be terminated owing to a disability (e.g. if a medical condition caused the leave), unless there is no reasonable accomodation at all the company could make to the disability while letting the person work. However, being on FMLA leave does not necessarily protect from layoffs or termination for other valid reasons--e.g. if a division or office is being restructured or downsized and friend would be a person legitimately let go, being out on FMLA leave won't prevent the layoff. Therefore, there is no single right answer; it depends on the circumstances surrounding your friend's layoff or termination.


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