Can I be fired for taking additional absence time after running out of Family Medical Leave Act (FMLA) time?

Unfortunately, you can be fired for taking additional absence time after running out of Family Medical Leave Act (FMLA) time. Employed in the United States is “employment at will”, meaning that your employer can fire you at any time for any reason unless prevented by law or by contract. Read this guide for leave options so you aren’t fired for taking additional time off after running out of FMLA.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Unfortunately, the answer in the majority of cases is “yes.”  This applies if you were out on Family and Medical Leave Act (FMLA) leave but need more time because you’ve used up all twelve weeks of unpaid leave.

Employment in this country is “employment at will.” While that has a number of different consequences, at the most basic level, it means an employee has no right to a job.

You have your job only so long as your employer wants you to have it. That means that your employer can terminate you for any reason—legitimate or not—unless there is some law or a written employment contract preventing it.

To reduce some of the harshness of employment at will, Congress passed the FMLA to give some employees the right to take time off for medical or health problems without losing their jobs.

(Not all employees are covered: only those working for government employers or private employers with at least 50 employees who work within a 75-mile radius, where the employee who wants to use leave has been there at least a year and worked at least 1,250 hours in the past 12 months.)

Job guarantee: If you are covered by FMLA, and if your (or a close family member’s) medical needs qualify, you are entitled to take up to twelve (12) weeks of unpaid leave without losing your job.

When you return to work after using those up-to-12 weeks of leave, your employer must either return you to the same job you’d held or a comparable or equivalent position with the same or nearly the same pay and benefits, more-or-less the same hours, the same location (or one equally distant for you), and the same or very similar seniority or authority.

Basically, as long as you return to a job as good as the job you’d held before taking leave, your employer has complied with the FMLA. And complying with the FMLA also means that you can’t be punished or retaliated against for using FMLA leave.

The important caveat to remember though is your employment is employment at will except to the extent some law protects your employment.

Once you exceed the law’s protection, you can be terminated. In the context of FMLA leave, that means that FMLA only protects an eligible employee (one who can use it) for up to twelve weeks.

Once those twelve weeks are used up, the employee is no longer protected by FMLA and may be terminated for absenteeism if he or she misses work, even for health-related reasons.

So no matter how strong your need is for more time off, once you have used up all your FMLA time, you can’t miss work. If you do, your employer could fire you for absenteeism, if it wants to.

Scheduling More Time Off Through Other Channels

There are some other things that could extend your time, or restrict your employer’s ability to terminate you.

State law: Certain states have family or medical leave laws that give you more time off than the FMLA does. If you are in such a state, you can take any additional time you qualify for under state law. Since the laws governing family leave widely differ among the states, contact the Department of Labor to find out the relevant information applicable to your state.

Employment contract: If you have a written employment contract (or union agreement) that extends your time off, you are entitled to whatever time the contract gives you. Or if the contract requires some disciplinary “process” before terminating you for missing work (for example, that you have to be given some number of warnings first), you are entitled to those protections, too.

Employer policies in place: Sometimes, you can even find a mandatory process which the employer must follow, or some rights or protections to which you entitled, without a formal contract, such as if the employer had voluntarily put in place some process or policies in an employee handbook or similar document which it has obligated or committed itself to follow.

PTO (Paid time off): if you have any left after using your FMLA leave, you can use those days, too, for additional time off.

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