The Family and Medical Leave Act (FMLA) guarantees up to 12 weeks of job‑protected leave. But what happens when that leave ends? Many employees and employers incorrectly assume firing is off the table. Yet the legal reality is more complex. Whether you can lawfully terminate an employee who is on FMLA frequently raises complex questions about timing, performance, business needs and process.
Understanding the FMLA Framework
The Family and Medical Leave Act (FMLA) is a federal law enacted in 1993 that entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for qualifying family or medical reasons. These include the employee’s own serious health condition, childbirth or adoption, and caring for a spouse, child, or parent with a serious medical condition. To qualify, employees must work for a covered employer, typically a private employer with 50 or more employees, and have worked at least 1,250 hours over the past 12 months.
FMLA Does Not Guarantee Job Security
While the law ensures reinstatement to the same or an equivalent position upon return, it does not grant immunity from all adverse employment actions. Employers may still terminate or discipline employees during or after FMLA leave, so long as the decision is unrelated to the leave itself. Reasons may include downsizing, performance-based termination, or restructuring.
No Fixed Time Limit—It Comes Down to Intent
Many employers ask what happens after the FMLA job protected period ends? There is no specified waiting period after leave ends during which an employer must retain the employee. Instead, courts look for evidence as to whether the termination was unrelated to FMLA leave including whether the decision to terminate was documented before the leave began. However, terminations immediately after leave will raise red flags and may be seen as retaliatory unless employers can prove otherwise.
Best Practices for Employers and Employees
Employers should rigorously document performance reviews, disciplinary actions, and business decisions before, during and after leave. That ensures clear records of non-FMLA reasons, should the decision be made to terminate an employee while on, or shortly after their return from, FMLA. Employees, meanwhile, should be vigilant about comparing their treatment to peers, examining inconsistencies, and seeking legal counsel if termination or some other adverse action taken against the employee seems untimely, unexplained or otherwise suspicious.
Let Us Help
If you’re an employer unsure about termination timing, or an employee who suspects retaliation, Romano Law is ready to help. We assist in crafting leave and return‑to‑work policies, reviewing documentation practices, and representing clients in FMLA disputes. Protect your workplace or your rights and reach out for a consultation that helps you navigate the FMLA tightrope wisely.
Contributions to this blog by Kennedy McKinney.
