A leave of absence is a short period of time that an employee takes off from work temporarily. With a leave of absence, the worker generally has the intent to return to their same position after the leave.
There are many reasons why an employee may seek a leave of absence (LOA), including family leave, medical leave, maternity leave, and bereavement. Leave of absences may be either paid or unpaid, depending on the agreement between the worker and their employer.
In most cases, this involves breaks of several days or weeks, mostly due to issues such as:
- Medical issues;
- Family emergencies;
- Pregnancy/maternity; and/or
The exact length of the leave of absence, as well as issues such as payments, work substitutions, etc., will depend on the employer as well as state laws. In most cases, leaves of absence are taken under the Family and Medical Leave Act (FMLA).
This law guarantees that a person who takes a valid leave for certain family or medical purposes can return to their position after taking leave. There are of course, many exceptions to this law.
Can You Get Fired For Taking a Leave of Absence?
In most cases, employers cannot fire a worker who has taken a valid leave of absence under the FMLA or under similar laws such as those governing pregnancy leave, military leave, and other types of leave. However, there are certain exceptions that employees should understand:
- Size of the Company: FMLA laws may not apply to all companies, especially those that have less than 50 employees.
- Top-Earners: Workers who are in the category of the top 10% earners in the company may be denied their same position when returning if it would constitute a “substantial” or grievous financial burden to the business.
- Layoffs: While employees generally can’t be individually terminated, they may still be subject to company-wide layoffs that occur during the time of leave
- Improper Filing: Termination may occur if the person was not actually on a valid FMLA or other type of leave (for instance, if they did not provide notice to their employer that they were taking leave)
- Earning Pay: Issues regarding pay and wages during leave can also occur, as policies will vary from company to company and from state to state.
What are Some Leave of Absence Disputes?
Disputes over leaves of absence are among the most common types of employment law disputes. Some common leave of absence disputes include:
- Employer’s failure to allow a valid Leave of Absence;
- Employee’s failure to properly request a leave of absence;
- Discrimination (for instance, allowing leave only for workers of a certain race or age);
- Disputes over an unpaid leave of absence; and
- Disputes over whether a leave of absence is valid or not, especially for medical leave cases.
Lastly, one common leave of absence dispute is where an employee is fired during a valid leave of absence. Sometimes, it can happen that a worker takes a valid leave of absence and then returns after their leave, only to discover that they no longer work for the company.
In most cases (subject to a few exceptions), employers cannot fire a worker who has taken a valid leave of absence, especially if the leave was taken under a statute such as the Family and Medical Leave Act (FMLA).
What are the Remedies for a Leave of Absence Dispute?
Some disputes can be resolved internally through human resources mechanisms or through a simple meeting with a supervisor. For instance, small disputes over leave of absence requests might only require a clarification of company policies by taking a look through the employee handbook. However, more serious violations and illegal actions might require a lawsuit to remedy.
If you’ve been terminated during a valid leave of absence under the FMLA or similar laws, you may be entitled to legal remedies. These can include remedies such as being reinstated to your previous position, legal damages for lost wages (if applicable), and other actions.
You can also prevent a wrongful termination during a leave of absence by ensuring that you inform your employer properly and follow all procedures under law and according to work policies.
Do I Need a Lawyer for Help with a Leave of Absence?
Taking a leave of absence is often necessary and is a common part of most employment situations. However, there can sometimes be various legal issues and concerns associated with a leave of absence.
It may be in your best interests to hire an employment lawyer in your area if you have any questions or concerns involving a leave of absence. Your lawyer can provide legal research for your inquiry or can help you file a lawsuit or legal claim if you need immediate assistance with the process.