FMLA: Wrongful Termination for Taking Sick Leave
Last Updated on June 26, 2017
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At A Glance
- This Alert Affects
- Anyone fired for taking sick leave under the Family Medical Leave Act (FMLA).
- Is It Legal For Me To Be Fired For Taking FMLA Leave?
- The law strictly prohibits this – there are only a few instances in which it's legal for an employer to fire someone who's out on FMLA leave.
What Are My Rights Under the FMLA?
Reasons for Taking Leave
As long as you’ve worked enough in the last 12 months and your company has at least 50 employees, you are entitled to up to 12 weeks of unpaid leave for any of the following reasons:
- You’re suffering from a “serious health condition” (description below)
- You’re caring for a spouse, child or parent who has a “serious health condition”
- You’re adopting a child or placing one in foster care
- You can’t work because you’re pregnant
- You just had a child and are caring for him/her after birth
What’s a “Serious Health Condition?”
This includes any illness, impairment, injury, or physical or mental condition that requires you to stay over at a hospital or other facility or requires continuing treatment by a doctor that prevents you from working or prevents a family member from participating in his or her daily activities.
Can I Be Fired for Taking or Requesting Leave?
The FMLA makes it illegal for any employer to interfere with employees’ rights under the Act – and is therefore prohibited from firing anyone for requesting or taking leave for the reasons described above.
Are There Any Reasons I Could Legally Be Fired While on FMLA?
Yes, but they’re few and far between. You can be terminated while out on FMLA leave if you were going to be fired anyway due to poor work performance – or if your employer discovers (while you’re out sick) that you haven’t been doing your job properly.
Furthermore, if you committed fraud or any other illegal activity while on FMLA leave, your employer is allowed to legally terminate you. Additionally, if the company is planning layoffs and has selected you to be laid off, you can be let go as long as the reason for your termination is NOT because you’re on leave.
It’s important to know that it’s your employer’s responsibility to supply you with forms to fill out after you’ve asked for FMLA leave. Furthermore, if you suddenly fall ill and are unable to go to work and/or contact your employer, it’s possible that you can request your leave start retroactively.
Have These Lawsuits Been Successful?
Yes. Below are the results from some previous lawsuits against employers who were accused of violating their responsibilities under the FMLA.
- $885,000 for a sheriff’s deputy who was allegedly fired for taking leave to care for his sick mother
- $373,400 for a Kentucky man who was fired after taking FMLA leave – the request for which was denied by his employer
- $235,000 for a police officer who was wrongfully terminated in violation of the FMLA
- $145,000 for a healthcare worker who was fired while out on FMLA leave to care for heart and nerve problems
- $40,000 to a school janitor who was wrongfully terminated after taking leave for clinical depression when the company mistakenly determined that her number of leave days were up
How Much Is My Wrongful Termination Case Worth?
The amount your case is worth depends on a number of different factors, including how long you’ve been out of work. While each case is different, by filing a lawsuit, you may be able to collect money for the wages, salary and benefits you lost from the day you were fired to the resolution of your case. You may also be eligible for “front pay” if it’s unlikely that you will land another job in the next several months. You may also be entitled to compensation for emotional distress and attorneys’ fees and costs.
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