Can I be fired while on maternity leave?

Question:

I had a baby four weeks ago. I'm using the FMLA for my time off, and I already took a total of two weeks off during my pregnancy, so I have six more weeks of maternity leave. My manager called me today to let me know that the company is conducting layoffs, and my position is likely to be cut. This means I may not have a job to go back to. Can they fire me while I'm taking FMLA leave?

Answer:

An employer can't fire you because you are taking FMLA leave: That would be retaliation, which is illegal. However, an employer can lay you off or fire you while you are on FMLA leave, if your leave has nothing to do with the termination.

The FMLA gives you the right to be reinstated to your former position (or a comparable one, if that position is no longer available) when your leave is over. However, it doesn't give you any additional rights beyond those you would have had if not for taking FMLA leave. In other words, if your whole department gets laid off while you are out on leave, you don't have a special right to get your job back. This is because you would have been laid off even if you didn't take FMLA leave.

The same is true of firing for cause. There have been a couple of cases in which an employer discovered that an employee had committed serious misconduct only after that employee went out on FMLA leave. In this situation, the employer may fire the employee, even though she is using the FMLA, because the employer has a legitimate and independent reason to end the employment relationship.

In your case, the question is why your position is targeted for layoff. If your position would have been eliminated regardless of your leave, your employer is acting legally. If, however, you are being targeted because of your time off, you may have a legal claim for retaliation under the FMLA. For example, if your employer is targeting employees who are on leave or have recently taken leave, that starts to look a bit fishy. Similarly, if you don't fit the announced layoff criteria, your employer's action might be suspicious. For instance, if the company claims to be laying off employees with the least seniority, but it is retaining a number of employees who have less seniority than you, that raises concerns.

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