terminated on Fmla

UPDATED: Sep 30, 2022

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terminated on Fmla

Hello. I had emergency surgery. I was
out of work for 2 of the 4 weeks of
January. Thursday my manager called me
into the HR office and said we prorated
your month of January and your numbers
werent good 2 weeks of work If I
didnt have emergency surgery I would
have been able to make my numbers. I
was written up before that being
unaware of the number change as my
manager at the time was preparing me
for another position. When I explained
that I was told I was out of line and
if I wanted to lose my job. I signed
the write up asked for a copy and never
received it. My manager was supposed to
help my get my goal up instead ignored
my emails. I never received a verbal
warning as I am supposed to before
being written up and they are supposed
to be signed my manager said yes I
gave you verbal warnings. Which she
didnt. She did everything she possibly
can to prevent me from moving from
making my goal or moving from her team
to another department. Any advise would
be greatly appreciate.

Asked on February 28, 2016 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

1) No, you cannot be terminated for being out on FMLA, if the company is covered by FMLA, you were eligible for it, and you validly took it--i.e. you requested it ahead of time in a non-emergency situation, or if an emergency, *as soon as* you got back.
2) You can be terminated while you are using FMLA leave for otherwise valid reasons (or more accurately, be terminated on your return to work), as long as those reasons are truly unrelated to FMLA. That is, if you had performance issues, you could be terminated for those, or for insubordination. However, if the allegedly non-FMLA reason is really tied to FMLA--for example, you missed productivity or sales numbers solely due to being out on FMLA--then that is illegal.
If you were illegally terminated due to being eligible for and properly using FMLA, then you could contact the department of labor to file a complaint, and/or speak with an employment law attorney about suing.
3) However, if you did not actually use FMLA leave, then you could be fired for a medical-care-related absence unless you had and used sufficient PTO to cover it; the law does not require employers to keep employees for miss work, even for medical reasons, unless they used some benefit or legal leave to cover the absence.

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 AttorneyPages.com 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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