Can your employer terminate you while on FMLA?

UPDATED: Sep 30, 2022

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Can your employer terminate you while on FMLA?

Currently asked to fill out FMLA papers. Before having surgery was told was on probation, however became sick 2 months ago. I received an evaluation in 3 months ago. The evaluation did not give a timeframe on fixing errors; errors that were not discussed throughout the year. I was given supervision and given 30 days to fix them. I had surgery and experienced complications this month. I received phone call that PTO was running out and that I needed to go on FMLA and a temp would be hired in my place. although all major projects were completed prior to leaving for surgery.

Asked on March 12, 2016 under Employment Labor Law, New Jersey


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

FMLA protects an employee from being fired for excessive absences. It does not, however, protect them from being fired for reasons that are separate and apart from their leave. Accordingly, if you would have been fired anyway, you can be fired while on FMLA. While many employers will choose to wait until the FMLA time is up before notifying an employee of their termination, some do not. It is an matter of company policy and not the law.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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