The question of whether an employee can be terminated after returning from a medical leave causes anxiety for many workers. Federal and state laws provide significant protection against being fired because an employee utilized legally protected time off, but this protection is not absolute. Understanding the circumstances under which an employer can and cannot legally end employment is important for anyone navigating a return to work after a serious health event. This article discusses the general principles involved in job protection following a medical absence.
Job Protection Under the Family and Medical Leave Act (FMLA)
The primary source of job protection for many American workers is the Family and Medical Leave Act (FMLA). This law allows eligible employees to take up to 12 weeks of unpaid leave annually for certain medical or family reasons. To qualify, an employee must have worked for the company for at least 12 months and logged a minimum of 1,250 hours in the preceding year. The employer must also have 50 or more employees working within 75 miles of the worksite.
The FMLA grants employees the right to job restoration. This means they must be returned to the same position they held before the leave or to an equivalent position. An equivalent position must be virtually identical in terms of pay, benefits, location, working conditions, privileges, and status. This prevents an employer from eliminating an employee’s role specifically because they took time away for a serious health condition.
This federal protection is limited, however, as the FMLA only guarantees 12 weeks of unpaid leave over a defined 12-month period. Once the employee exhausts the full allotment of 12 weeks, the job restoration guarantee ends, leaving the employee vulnerable to termination if they are still unable to return to work. At this point, the employee must rely on other federal or state laws for continued job security or accommodation.
Ongoing Protection Through Reasonable Accommodation
Even if an employee has exhausted their FMLA entitlement or does not qualify for FMLA protection, they may still be covered under the Americans with Disabilities Act (ADA). The ADA applies to employers with 15 or more employees and provides protection centered on disability and accommodation. Under this law, a person is considered to have a disability if they have a physical or mental impairment that substantially limits one or more major life activities.
The ADA does not guarantee job restoration like the FMLA, but instead mandates that employers engage in an “interactive process.” This process determines if a reasonable accommodation can be provided to allow the employee to perform the job’s essential functions.
A reasonable accommodation might include a modified work schedule, making the work environment physically accessible, providing specialized equipment, or granting extended unpaid leave beyond the FMLA’s 12 weeks. This process ensures the employee is given the opportunity to maintain employment without causing undue hardship to the employer’s operations.
The employer is only required to provide an accommodation if it does not pose an undue hardship, which the law defines as a significant difficulty or expense. This standard is considered on a case-by-case basis, taking into account the employer’s size, financial resources, and the nature and structure of its operation. If all potential accommodations, including extended leave, are exhausted and the employee still cannot perform the job’s essential duties, the employer may then legally consider termination.
Scenarios Where Termination May Be Legal
The protection offered by FMLA and ADA does not grant employees absolute immunity from termination, and employers can legally end the employment relationship under specific circumstances. For a termination to be lawful following a medical leave, the employer must demonstrate that the decision was based on non-retaliatory business reasons completely unrelated to the employee taking protected time off.
Business Changes or Layoffs
An employer can legally terminate an employee on medical leave if the employee’s position was slated for elimination due to a legitimate reduction in force (RIF) or company restructuring. If the company can prove the position would have been eliminated regardless of the employee’s absence, the job protection afforded by FMLA does not apply. The key factor is that the layoff must be part of a broader, documented business decision and not an action specifically targeting the employee who took leave.
Performance Issues Unrelated to Medical Leave
Termination is permissible if the employee was already under a documented disciplinary process for poor performance before the medical leave began. Similarly, if an employee commits a terminable offense, such as theft or a serious policy violation, while they are on leave, the employer can proceed with termination. Once the employee returns, if new performance issues arise that are unrelated to the medical condition, the employer is free to manage performance and potentially terminate employment following standard disciplinary procedures.
The Highly Compensated Key Employee Exception
The FMLA includes an exception that allows employers to deny job restoration to certain highly compensated employees. This exception applies to salaried employees who are among the highest paid 10% of all the employer’s employees working within 75 miles of the worksite. An employer may refuse to restore a key employee to their position if doing so would cause substantial economic injury to the company’s operations.
Inability to Return to Work or Perform Essential Duties
If an employee’s protected leave under FMLA has expired, and the interactive process under the ADA fails to identify a reasonable accommodation, the employer may legally terminate the employment. At this point, the employee cannot perform the essential functions of the job, and the employer has satisfied its legal obligation to consider accommodation. This is a common scenario when an employee’s medical condition extends beyond the maximum allowed time under both FMLA and any reasonable extension granted under the ADA.
Immediate Steps If You Are Terminated
If an employee is terminated shortly after returning from a medical leave, or while still on leave, they should take immediate steps to preserve their legal options. The first action should be to document every detail surrounding the termination, including the date, the stated reason, and the names of all individuals involved. The employee should formally request the official reason for the termination in writing from the human resources department.
Gathering documentation is important, including all performance reviews, disciplinary notices, and communication related to the medical leave and the return-to-work process. These records help establish the timeline and the employee’s standing prior to the leave. If the employee believes the termination was retaliatory or illegal, they should contact an employment lawyer immediately for a consultation.
Employees can also file a complaint with the Department of Labor (DOL) or the Equal Employment Opportunity Commission (EEOC). These federal agencies enforce FMLA and ADA, and they can investigate the claim to determine if the employer violated federal law. Taking swift action is the best way to address a termination that appears related to the use of protected medical leave.