Imagine devoting several years to a company just to be terminated after you take time off work to care for yourself or a loved one. The Family and Medical Leave Act (“FMLA”) is a federal law meant to protect your job while you take time off for this very reason. The law prohibits employers from firing employees in retaliation for exercising their rights to use FMLA-protected leave. The law not only protects your job while you are on leave, but it also protects your job when you return to work. Upon your return, for the most part, you should have maintained the same basic conditions of employment as when you left—such as your position and compensation.

But, of course, like all areas of the law, every case is fact-specific. And not every protection is limitless. In certain situations, it is unlawful for your employer to fire you after your request or return from FMLA leave. But in other situations, your employer may be able lawfully to fire you during and after your FMLA leave. Crafty employers will try to find ways around the FMLA if they truly want to get rid of you. An experienced employment lawyer can assess your situation and determine if your FMLA rights have been violated.

The truth is, there is no time restriction on when an employer can terminate your employment, which means the legality of your termination depends on the specific circumstances of your case, including how long after requesting FMLA leave you were fired. Always remember—

Florida is an at-will employment state, meaning your employer can typically terminate your employment without warning, including any time after returning from FMLA leave. However, your employer can never terminate your employment solely because you took leave pursuant to the FMLA.

Overview of FMLA Protections

The FMLA provides you with up to 12 weeks of unpaid leave each year that covers various situations, such as:

• The birth, adoption, or foster care placement of a child (for all parents—regardless of gender);
• Recovering from a serious medical or mental condition that has rendered you unable to work (e.g., cancer, arthritis, asthma, anxiety, depression, etc.); or
• Caring for an immediate family member with a serious health condition such as those listed above (e.g., a parent, spouse, or child).

Employees who are eligible for FMLA are permitted to take up to 12 weeks of leave within a 12-month period for qualifying reasons. The leave can either be taken all at once (“continuous leave”), or as needed (“intermittent leave”). For example, a father can take 12 straight weeks off work to care for his newborn. Alternatively, a mother may occasionally need a 30-minute break to provide breathing treatments to her daughter who has asthma. The FMLA protects both types of leave. If an employer fires one of those fathers simply because it does not want its employees utilizing FMLA leave, the employer will be subject to penalties under the FMLA—including monetary damages.

Of course, you have been wondering what the FMLA says about your pay while you are on leave. You may not want to hear this, but—your employer is not always required to pay you. FMLA protects your job—it does not protect your pockets. Still, the employer does need to comply with its normal leave policy. For example, if you have accrued paid time off (“PTO”), they may allow or require you to use it while you take your FMLA leave. Alternatively, the employer might have a third-party company that supplies employees with paid leave. When your options for paid leave run out, whatever they may be, your job protection will continue for the remainder of the 12 weeks, but it may be unpaid.

On the bright side, your employer must continue providing you with any group health benefits you would have received while working. In other words, they cannot retaliate by altering the health insurance conditions you had prior to your request for leave. For the most part, your costs should remain the same. Similarly, if you choose not to keep your group health benefits while on FMLA leave, you still have the right to be reinstated to the same coverage as before the leave began. Furthermore, your employer cannot reduce your wages or—as mentioned above—terminate your employment simply because you are taking FMLA leave. When you are ready to return to work, your employer must offer you either the same position or a comparable one, and your pay rate must remain unaffected by your leave of absence.

It is crucial to keep in mind, however, that even if you work for an employer who is required to provide FMLA leave (please note that not all employers are), you might not be eligible for its protections. For example, the FMLA requires that you must have first worked a minimum of 1,250 hours for that employer within the previous 12 months before you can take FMLA leave. In other words, part-time employees could be ineligible if they have not worked enough hours in the past year. The FMLA is also requiring that you actually work a full 12 months prior to your request. An employee who only worked for an employer for six months may not enjoy the same protections. There are various requirements of the FMLA—just as there are many exceptions. Employment lawyers will help you determine if you are protected by the FMLA. If so, they will fight for your rights to get the justice you deserve.

Legal Boundaries: Can You Be Fired After Taking FMLA?

While FMLA provides protections for your job, benefits, and wages while taking protected leave, those protections end after your 12 weeks of leave is up. At that point, you must return to work or secure some other form of leave.

With that in mind, you may wonder, “Can I be fired if my FMLA runs out?” The answer is a clear yes. Your employer has legal authority to terminate your employment during and after you take FMLA leave. For example, if your employer must reduce its workforce (commonly called a Reduction in Force or “RIF”), your employer can lay you off so long as they do not do so, specifically because you took FMLA leave. Laws such as the Worker Adjustment and Retraining Notification Act (“WARN Act”) protect certain employees by requiring larger employers to provide advance notice in cases of qualified plant closings and mass layoffs. If an employer is subject to and complies with the WARN Act while terminating you and other employees, FMLA might not be able to save your job. But if your employer intentionally and strategically chooses to reduce its force by solely terminating employees who have utilized FMLA leave, then there may be evidence of discriminatory motive, and FMLA, along with several other laws, will aim to protect you.

However, any misconduct discovered while on FMLA leave or after your return can lead to termination or other disciplinary action. For instance, if your employer discovers that you lied about why you needed FMLA leave, they could terminate your employment for the deceit as long as they do so per the company’s policies. On the other hand, it could be your employer who is deceitful. Many employers have been known to create negative performance reviews to make it seem as if you were terminated for simply being a bad employee—and, of course, not in retaliation for utilizing FMLA benefits. If an employer lies to hide the real motivation behind your termination, this is called a “pretextual” termination. If you can prove your termination was merely a pretext and that you were really terminated due to your employer’s violation of some law, such as FMLA interference or retaliation, you may be able to prevail despite your employer’s best efforts to paint you as a bad employee. Maintaining documentation of positive feedback at work is one method of demonstrating that you were a hardworking employee prior to your termination.

Situations Where Terminating Your Employment Would Be Illegal After FMLA

The above examples are not meant to suggest that your employer’s ability to fire you after taking FMLA leave is absolute. You still have other legal protections if your employer attempts to terminate you. By knowing the lines your employer may not cross, you can spot a wrongful termination and take action if such a scenario happens to you.

For example, imagine your employer is displeased with all the mothers who utilize FMLA leave to care for their newborns. In response, they make discriminatory remarks about women, discourage them from taking leave, and refuse to promote them even when they are just as qualified—if not more qualified—than men. Even if the FMLA’s protection does not apply, other laws will still be there to protect you. Title VII of the Civil Rights Act (“Title VII” or “Title 7”) is a federal law that prohibits employers from discriminating and/or retaliating against employees due to their pregnancy, sex, race, nationality, religion, or other protected classifications.

The Americans with Disabilities Act (“ADA”) is a federal law that protects employees from disability discrimination and retaliation. The ADA oftentimes works together with the FMLA if you have been employed for longer than one year. However, each law is different, so what is required under the FMLA is not necessarily required for the ADA, and vice versa. For example, qualifying medical conditions are different under each law.

There are also state laws that may protect you, such as the Florida Civil Rights Act (“FCRA”) and Florida’s Workers’ Compensation Law (“FWCL”). The FCRA protects rights similar to Title VII. It even has special provisions for discrimination on the basis of HIV/AIDS. There is also the FWCL, which prohibits an employer from retaliating against an employee who is injured at work. Even if FMLA’s 12-week protection has run its course, other laws will be there to protect you.

What To Do If You Are Terminated After FMLA

Protecting your rights after being terminated for taking FMLA leave begins by documenting the circumstances of your termination. Gather as much information as possible, including the date you were terminated and the name and job title of the person who terminated you. If possible, have your employer identify the specific reason for your termination in writing

Additionally, keep any letters, emails, texts, and other correspondence you might have received relating to your employment or termination. This will help prove your wrongful termination case. It is advisable to create backup copies in case your originals get lost or damaged. Many employers have been willing to settle for higher amounts when they know there is evidence directly proving their discriminatory motive. You should also create a list of all communications you receive, including when, from whom, and the platform through which you obtain these communications.

Your next step should be to visit an experienced Florida employment law attorney as soon as possible and before you take any other actions. After being terminated, what you say and do can significantly affect your ability to seek compensation or pursue other legal remedies. And of course, do not ever forget that there are strict deadlines or statutes of limitations for laws such as the FMLA.

If you and your lawyer determine your termination violated the FMLA, you may be able to seek a pre-litigation settlement or monetary damages in court. In addition to lost pay, you could be reinstated to your position and recover other expenses.

Preventive Measures: How to Protect Yourself

While you may have rights if your employer wrongfully terminates your employment, it is easier and less stressful to avoid such a situation altogether. Ultimately, you are not responsible for your employer’s decision to wrongfully terminate you, but there are steps you can take to make it less likely you will find yourself in that position.

First, familiarize yourself with the FMLA and its protections by reading the text of the law itself. Review what actions your employer can take against you while on FMLA leave and which actions could be illegal so that you can determine whether your employer is subject to the FMLA’s provisions.

Next, familiarize yourself with your company’s specific FMLA and leave policies. Some employers require you to request FMLA leave a certain number of days in advance, and many will require you to use up any paid leave you have accrued before allowing you to claim FMLA leave. Becoming acquainted with these policies now will keep you from having to acquire that information during a personal crisis.

If you need to use FMLA leave, ensure that you document as much as possible regarding the request process and other details. Make your request in writing, even if your employer does not require you to do so. Ensure to save any correspondence that approves your request. These can be critical to any legal claim you may file based on a violation of the FMLA. Believe it or not, some employers will claim you never requested FMLA if there is no paper trail proving you did so. You do not want to be in a position where all the FMLA-related conversations occur via telephone. If your doctor faxes the FMLA paperwork to your employer, ensure you also get a copy of everything they faxed. Documentation is key in any employment case. Assist your attorney by maintaining good documentation throughout the process instead of hoping to receive it from the employer months or years down the line.

Professional Legal Advice for FMLA Issues

If you return from FMLA leave to find you have been demoted, received a pay cut, or have been flat-out terminated, it is time to speak with an experienced Florida employment lawyer from Wenzel Fenton Cabassa, P.A. With decades of experience fighting for employee rights, Wenzel Fenton Cabassa, P.A. has focused its practice solely on representing employees—not employers. Because of that focus, we have the skills, knowledge, and resources you can rely on. We will help you evaluate whether your employer violated the FMLA or any other rights you have and take action if they have done so.

Contact the Florida FMLA lawyers at Wenzel Fenton Cabassa, P.A. immediately if you have questions or concerns about your employer’s actions.

Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.