FMLA Does Not Mean Employees are Ineligible for Termination

The Family and Medical Leave Act (FMLA) gives qualifying employees up to 12 weeks of unpaid leave per year. It allows employees to take a reasonable amount of unpaid leave time for medical or family reasons such as:

  • The birth of a newborn child;
  • Adoption or foster care;
  • Caring for a spouse, child, or parent with a serious medical condition; or
  • Taking medical leave for a serious health condition.

The FMLA applies to:

  • Public agencies;
  • Public and private schools; and
  • Businesses with 50 or more employees.

Under the FMLA a person is eligible for leave if he or she:

  • Worked for their employer for at least 12 months;
  • Has worked at least 1,250 hours over the past 12 months; and
  • The location he or she works at employs 50 or more employees within 75 miles.

While the FMLA does provide employees with job-protected leave for certain situations, it does not mean that employees are ineligible for termination during their leave. According to the law, if an employer has an acceptable reason for the employee’s termination and can prove grounds for termination that are not related to the employee’s leave, then it is considered a valid termination. Under the FMLA valid reasons for termination include:

  • Performance issues;
  • Insubordination;
  • Downsizing; and
  • Poor attendance.

In essence, an employer can lawfully terminate an employee on leave for a myriad of performance related issues. However, there must be sufficient evidence to substantiate the employer’s claim, because the termination will be deemed unlawful if it was in any way related to the employee’s leave.

If you or a loved one has been terminated as a result of taking leave under the FMLA, it is important to speak with an experienced New York employment lawyer who may advise you on your legal rights and remedies. Steven Sack, “The Employee’s Lawyer,” has represented individuals alleging unlawful termination for more than 37 years. Mr. Sack is knowledgeable in all aspects of employment law and fights zealously on behalf of his clients. For more information or to schedule a consultation, call (917) 371-8000 or email

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