Can You Get Fired During a Leave of Absence?

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 What Is Wrongful Termination?

Wrongful termination, or unlawful termination, is an employment law term that refers to when an employer fires an employee for illegal and/or unauthorized reasons. These include any reasons that:

  • Violate federal, state, and/or local laws;
  • Go against public policy; and/or
  • Breach the terms of an employment agreement.

Wrongful termination can also occur when an employer fires an employee who has refused to obey work instructions that are illegal, such as ignoring safety regulations for a specific job task. Another example of this would be asking them to commit even more serious crimes, such as a felony offense for larceny or tax evasion.

One other way in which an employee can be unlawfully terminated is when an employer ignores their own company’s policies which govern the termination process. An example of this would be if the employer does not adhere to the proper protocols when releasing the employee from their position.

Finally, it is important to note that if an employer terminates an employee in a manner that is considered to be unlawful or illegal, they can face legal consequences for their actions.
They could be required to compensate the employee in some way, such as:

  • Having to reimburse them in back pay;
  • Reinstating them to their prior position;
  • Paying them monetary compensation for a specific reason; and
  • Various other forms of relief as differing state laws allow.

Most types of employment are considered to be “at-will” employment. What this means is that an employee is being hired for an unspecified amount of time, and that during this time their employer has the right to terminate them at any point and without cause. In this context, the phrase “without cause” implies that the employee can be fired for any reason or for no reason at all, as long as the reason is not considered to be illegal or unlawful.

While the wrongful termination laws of each state may vary in their eligibility requirements, the following reasons are generally not permitted as a proper basis for terminating an employee:

  • Discrimination, specifically termination based on religion, race, gender, age, disability, etc.;
  • Breach of the employment contract; and
  • Public policy exceptions, such as retaliatory termination or whistleblowing.

Can You Get Fired For Taking A Leave Of Absence?

Employees may need an extended amount of time off from work because of health and/or family concerns. The time period during which the employee is off from work is known as a leave of absence, and the law may prohibit an employer from terminating an employee for taking a leave of absence.

To further clarify, a “leave of absence” is an extended period of time (such as a few days, a week, a month, etc) during which the employee is absent from work because of a personal health condition, or that of a family member. Some other common reasons for taking a leave of absence include attending to a family death or emergency. Additionally, employees may take a leave of absence when they are pregnant and/or when they are caring for a newborn.

Most employers provide an employment handbook to their employees when they start work. Employee handbooks or employment agreements contain provisions which address and detail time off from work. Such provisions include:

  • Employer sick leave policies, both paid and unpaid;
  • Vacation leave; and
  • Paid time off leave.

These provisions are created and dictated by the company, as part of its employee benefits. As such, they grant leave under the provisions of these policies.

There are some circumstances in which federal or state law requires employers to grant employees a leave of absence. An example of this would be how many state laws require employers to provide employees with a certain amount of time off for illness or injury of the employee, or that of a family member. These laws differ in terms of:

  • The amount of leave that must be provided;
  • What size the employer must be in order to be covered by the leave; and
  • Whether the leave is paid or unpaid.

The majority of these laws have determined that an employee who takes leave can return to their existing job. Additionally, most of these laws contain anti-retaliation provisions, which prohibit an employer from retaliating against an employee who has requested or taken permitted leave. Examples of retaliation generally include firing, demoting, or suspending the employee.

Does The Americans With Disabilities Act (“ADA”) Require Granting A Leave Of Absence? What About The Family And Medical Leave Act (“FMLA”)?

The federal Americans With Disabilities Act (“ADA”) may prevent an employer from terminating a disabled employee for taking leave. In order for an employee to be protected by this law, the employee must be a “qualified individual with a disability.” What this means is that the employee must be able to perform the essential (or major) functions of their job. However, the ADA also requires employers to provide reasonable accommodations to disabled employees.

A reasonable accommodation is a change in the work environment that better enables a disabled employee to work. An example of this would be an employer providing a stool to a disabled clerk who gets tired from standing for too long, but who can perform their job effectively by sitting.

A leave of absence can be considered as a reasonable accommodation if it enables a worker to return to their position when their period of leave is over. Under the ADA, an employer must grant unpaid leave unless another option is better; or, if the leave causes the employer “undue financial hardship.” It is important to note that what constitutes “undue financial hardship” can vary considerably. It is also important to note that the ADA does not require employers to provide indefinite leave, which is leave with no expected return-to-work date.

The Family and Medical Leave Act, or FMLA, is a federal law which requires qualifying employers to provide their employees with unpaid leave, for up to 12 weeks, in one 12-month period. Additionally, employers who are covered under the FMLA must continue to provide group health benefits to employees who take leave. In general, an employee who takes FMLA leave is entitled to job restoration; meaning that when the employee returns from their leave of absence, they can go back to performing their existing position.

If an employee does not work for an employer who is covered by state or federal leave laws, or state or federal antidiscrimination laws, the employee may be subject to termination for taking a leave of absence. This is because an employer may terminate an employee who is not covered by these laws as part of a mass layoff.

The FMLA covers employers with 50 or more workers, in 20 or more weeks of work, which must be in the current or previous year. Additionally, the FMLA does not allow certain employees to take leave. “Key employees” are those who are in the top 10% of the employer’s income earners. They may be denied their previous job upon their return, if their return constitutes substantial financial burden to the employer.

Do I Need A Lawyer If I Was Fired During A Leave Of Absence?

If you have questions regarding whether you are entitled to a leave of absence, you should contact an employment lawyer. A wrongful termination attorney can help you understand your legal rights and options according to your state’s specific laws, and will also be able to represent you in court, as needed, should any legal action be necessary.

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