Can I be terminated while FMLA is pending?

UPDATED: Oct 1, 2022

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Can I be terminated while FMLA is pending?

I am on intermittent FMLA with my employer due to a disability they’ve known about all 5 years I’ve worked there. I submitted an extension for my FMLA in April 10th, it expired April 13th, and my extension is requested for April 13th of this year through to next year. I have until the 25th to have my paperwork in for everything to be approved. I’ve missed 3 days due to my disability 4/13, 4/17, 4/19 and I’m not being threatened with termination if I miss another day, or even if Im late, before my

FMLA is approved. I don’t understand how they can do this when it’s an extension of FMLA that I’ve had for over a year and they know my absences are due to my disability. Can I be fired when my FMLA is pending?

Asked on April 21, 2018 under Employment Labor Law, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

There unfortunately is not a simple answer to your question, since there are two competing principles at work:
1) Except to the extent you use PTO or FMLA, you can't miss work without being fired at the employer's option, even if you have a disability or medical condition; therefore, if you miss work when FMLA has not been authorized or extended, you could be terminated.
2) However, the employer cannot retaliate against you for using FMLA, and if they drag their feet in any way on reauthorizing it or slow down its extention to deliberately create a situation where you miss work and are terminated, that would likely be illegal retailiation.
So the issue is, to what extent is the employer making things difficult for you so as to punish you or retaliate against you (illegal), vs. to what degree is the employer acting properly but you miss time or work when you are not authorized to do so (in which case you could be legally terminated)? If anything is done, the facts will determine whether the action was legal or illegal. We can and do advise that since there is a chance your termiantion for missing work could be found to be legal and proper, that you do NOT miss work for the next few weeks, until your FMLA is extended and re-authorized.

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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