Can My Employer Fire Me For Using FMLA In Ohio?

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Answered by: Peter G. Friedmann

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The answer is no*, but that asterisk is important. 

*An employer cannot fire an employee because they have chosen to lawfully take time off according to the terms of the Family and Medical Leave Act of 1993, but they can fire an employee for valid reasons while they are using or have recently taken time off via FMLA. FMLA is not a “get out of jail free card” for employee misconduct, poor performance or other workplace issues.

FMLA: A Refresher

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. FMLA allows for up to 12 weeks of job-protected leave in a calendar year. This leave is unpaid. However, an employee should return to the same or an equivalent position in the company once their FMLA leave has concluded.

How An Employer Can Violate The Terms Of FMLA

There are two specific ways in which an employer can violate the terms of FMLA and expose themselves to legal ramifications:

  1. Interference with using FMLA — preventing its use or making it excessively difficult
  2. Retaliation for using FMLA

These are not exclusive; a violation of FMLA can simultaneously be an example of interference AND retaliation. In the same vein, if FMLA is A factor (not even THE factor) in the decision to fire an employee, the employer is in violation of the employee’s FMLA protections.

Examples Of Unlawful Employer Actions Related To FMLA

According to the Department of Labor, the following actions by employers would be violations of FMLA’s employee protections:

  • Refusing to authorize FMLA for eligible employees
  • Discouraging employees from using FMLA or placing obstacles in their path
  • Manipulating work hours to make them ineligible for FMLA
  • Using an FMLA request or FMLA leave as a negative factor in hiring, promotions or disciplinary actions
  • Counting FMLA leave time toward “no fault” attendance policy limits

Employees At Small Companies Are At A Higher Risk

Employers frequently fire employees for taking time off. This happens more often at small companies, as the employee protections of FMLA only apply to employers with more than 50 employees. Other caveats are that employees must have worked for the company for a minimum of one year or a minimum number of hours.

Employees of mid-size companies are not completely out of the woods; managers at mid-size companies may try to fabricate a reason for termination when faced with an FMLA leave that threatens their department’s production goals.

Legitimate Reasons To Fire An Employee Who Takes FMLA Leave

Employers can legally terminate an employee for legitimate nondiscriminatory reasons that are not related to their FMLA leave. For example, an employer can justifiably fire an employee for stealing intellectual property, embezzling funds or punching a colleague in the face. These are all examples of actions that would lead to termination in most workplaces regardless of whether an employee is taking leave.

An Experienced Employment Law Attorney Can Steer You In The Right Direction

If you believe your employer is violating your rights regarding FMLA, it is best to seek the advice of a knowledgeable employment lawyer who can answer your questions and allow you to make an informed decision about how to proceed.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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