Can an employee be terminated while on medical leave?

It depends on the reason the employee is on medical leave. Under the FMLA, an employee cannot be terminated simply because they take leave. An employee is free to take medical leave without fear of losing their job. However, if there is a reason unrelated to the medical leave, an employer does have the right to terminate an employee.

Author: Brad Nakase, Attorney

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Under the FMLA, an employee cannot be fired for taking medical leave. This would be viewed as a retaliatory act by the employer against the employee. In short, an employee cannot be terminated because they took leave.

However, it is possible for an employee to be terminated for other reasons while on medical leave. An employer can still fire or lay off an employee for the following reasons:

  • Justifiable company downsizing
  • Justifiable company restructuring
  • Poor individual performance or behavior

To summarize, an employer cannot legally fire an employee because they needed to take leave. Nor can medical leave be a part of the decision to terminate an employee. The only way for an employee to be lawfully let go while on medical leave is for there to be other legitimate grounds for termination.

What is Medical Leave?

In the United States, the Family and Medical Leave Act (FMLA) gives an employee the legal right to medical leave under specific conditions. Under the act, an employee is eligible to take a maximum of 12 weeks unpaid leave. They can take this leave without fear of losing their job. When the employee either is prepared to go back to work or runs out of medical leave, the employee has the right to return to his or her previous position.

Note: The FMLA, as a federal protection, applies to businesses with at least 50 employees at locations within a 75-mile radius of one another.

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