Can You Be Fired While on FMLA Leave? What the Law Says

Yes, you can be fired while on FMLA leave — but only for a reason that has nothing to do with the leave, and the burden of proving that falls on your employer. FMLA is not a shield against a layoff or a performance dismissal that would have happened anyway.

That is the rule in one sentence. The interesting part is how employers get it wrong, because the regulation puts them in a position where a legally permissible termination still looks like retaliation unless the paper trail predates the leave.

Key Takeaways

• FMLA gives you no greater right to reinstatement than if you had been continuously employed during the leave (29 CFR 825.216).
• To deny restoration, “an employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested” — the burden is on the employer, not you.
• Employers cannot use FMLA leave as a negative factor in any employment action, or count it under a no-fault attendance policy (29 CFR 825.220).
• Timing is the employer’s biggest problem: a decision documented after the leave request looks like retaliation even when it was not.

First: Are You Actually Covered by FMLA?

A large share of “I was fired on FMLA leave” situations turn out not to involve FMLA at all, because the employee was never eligible. Three tests must all be satisfied (29 CFR 825.110):

1. 12 months of employment with the employer. The months do not have to be consecutive.
2. 1,250 hours of service in the 12-month period immediately before the leave starts. That is roughly 24 hours a week — part-time employees frequently miss it.
3. 50 or more employees within 75 miles of your worksite, employed by your employer.

Our FMLA guide for employers works through each test with examples. Miss any one of those and FMLA does not apply. That does not leave you without protection — the ADA, state family leave programs, and state paid sick leave laws all operate independently — but the analysis in this article changes.

The Rule: No Greater Right, No Lesser Right

The controlling text is short. Under 29 CFR 825.216, “an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.”

Read that as a symmetry rule. Leave does not upgrade your job security and it does not downgrade it. The test is a counterfactual: would this employee still have a job today if they had been at their desk the whole time?

If the honest answer is no — the whole department was eliminated, the site closed, the fixed-term contract expired, the performance plan was already failing — the termination stands. If the answer is yes, the termination is unlawful.

The same regulation assigns the burden: “An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.” The employee does not have to prove bad faith. The employer has to prove the alternative.

Lawful vs Unlawful Terminations During FMLA Leave

Scenario	Generally lawful?	What decides it
Company-wide layoff using objective criteria set before the leave	Yes	Employee’s inclusion must be independent of the leave
Site closure or department elimination	Yes	The job no longer exists for anyone
Fixed-term contract or seasonal assignment ends	Yes	End date predates the leave
Misconduct discovered during leave (theft, falsified records)	Yes	Same discipline must apply to non-leave employees
Performance dismissal with documented history before the leave	Usually	Timeline and consistency carry the case
Performance dismissal first documented after the leave began	No, in practice	Reads as pretext; employer rarely meets its burden
Termination for “excessive absence” that includes FMLA days	No	FMLA cannot be counted under attendance policies
Termination because the role was hard to cover	No	That is the burden FMLA is designed to impose

Why Timing Sinks Employers

Here is the pattern that produces most FMLA retaliation claims, and it usually involves no malice at all.

An employee’s performance has been slipping for months. Nobody has written anything down. The employee then requests FMLA leave for surgery. With the person out, the gaps become visible, the manager finally documents them, and the employee is dismissed in week eight of a twelve-week leave.

Every step feels reasonable to the manager. To a court, the file shows: leave requested, negative documentation created, termination. The employer must now show the decision would have been made anyway — using evidence that mostly did not exist before the leave.

The lesson for employers is not “never terminate during FMLA.” It is that a decision you cannot evidence from before the leave request is a decision you should be very slow to execute during one.

What You Are Entitled to on Return

If you are not terminated, 29 CFR 825.214 entitles you “to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.” That applies even if you were replaced or the position was restructured while you were out.

“Equivalent” is a demanding standard. Under 29 CFR 825.215 an equivalent position is “virtually identical to the employee’s former position in terms of pay, benefits and working conditions,” with the same or substantially similar duties. A same-salary role with reduced scope, a worse shift, or a longer commute is often not equivalent.

Note what does not accrue: under 29 CFR 825.215(d)(2), you are not entitled to accrue additional seniority or employment benefits during unpaid FMLA leave. Benefits earned before the leave remain yours. We cover that in detail in our guide to whether you accrue PTO on a leave of absence.

The narrow “key employee” exception

There is one carve-out. A “key employee” — defined in 29 CFR 825.217 as a salaried FMLA-eligible employee “among the highest paid 10 percent” of the employer’s employees within 75 miles — can in limited circumstances be denied restoration where it would cause substantial and grievous economic injury. The employer must give written notice at the time leave is requested. It applies to at most 10% of the workforce and is rarely used correctly.

Signs Your Termination May Have Been Unlawful

• The reason given is vague, new, or inconsistent with your last performance review.
• Your absence itself was cited — coverage difficulty, “reliability,” or attendance points that include FMLA days.
• The paperwork supporting the decision is dated after your leave request.
• A colleague with comparable performance who did not take leave was retained.
• You were told the role was eliminated, and it was posted or backfilled soon after.
• Your employer never gave you the required FMLA eligibility and rights notices.

If several of these apply, the DOL Wage and Hour Division accepts FMLA complaints, and you can also pursue a private action. There are filing deadlines — generally two years, or three for willful violations — so do not sit on it.

What This Means for You

If you are on leave and worried: keep copies of your FMLA notices, your last two performance reviews, and any written communication about your leave. Dated documents are what the counterfactual test turns on, and they are much harder to obtain after you lose system access.

If you manage people: the safe practice is a bright line. Any termination decision affecting an employee on FMLA leave should be reviewed against evidence created before the leave request, applied identically to employees who did not take leave, and documented with that comparison written down. If the file only supports the decision after the leave began, wait.

If you administer leave: the mechanical failure is almost always the attendance system. FMLA days that flow into a no-fault attendance count are a direct violation of 29 CFR 825.220, and most of the time nobody notices until a claim lands. Track FMLA as its own leave type, excluded from attendance triggers by design. Leave Balance separates statutory leave from discretionary PTO and keeps an auditable record of every request, approval, and balance change. Flat $10/month, unlimited employees, 14-day free trial.

This article is general information, not legal advice. FMLA interacts with state family leave laws, the ADA, and city or county ordinances that may add requirements. Speak to an employment attorney about your specific situation.