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You Can Get Fired During FMLA Leave

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The federal Family & Medical Leave Act (FMLA) grants eligible full-time employees (those who have worked at least 1,250 hours during a 12-month period) at organizations with a workforce of 50 or more up to 12 weeks of unpaid leave for the birth and care of a newborn; the adoption of a child or foster child; the care of an immediate family member with a serious health condition; and personal medical leave because of a serious health condition. Here are several recent FMLA legal decisions.

Layoff based on suspect performance evaluation violates FMLA.
The law does not forbid layoff of an employee who is on FMLA leave if the action would have occurred anyway had he or she not been on leave. In Cutcher v. Kmart Corp. (6th Cir., 2010), an employee on FMLA was part of a workforce reduction. The company based layoffs on performance evaluations, and the plaintiff’s evaluation was low. However, the court found evidence to suspect the poor evaluation: It was done during the employee’s FMLA absence. She had received an “exceeds expectations” evaluation just four weeks earlier, immediately before taking FMLA leave. Obviously, her work performance could not deteriorate while she was not present at work, so the layoff evaluation seemed to be a pretext to eliminate a person who had exercised FMLA rights. 

FMLA eligibility can start in the middle of unqualified leave. An employee with less than a year’s service was granted short-term medical leave for surgery.  Medical complications resulted and the employee was unable to return to work when the short-term leave expired. The company then terminated the individual. But the employee passed the one-year mark during the original approved leave. In Porcillo v. Vistar Corp. (M.D. Fla., 2010), the court ruled that FMLA eligibility started at that point—and the employer should have given up to 12 more weeks of extended FMLA before discharge.

Walt Disney World is not the proper place for FMLA. Just days after being counseled for poor performance, a sheriff’s department investigator was diagnosed with cytomegalovirus and then stayed off work for several weeks. She spent two of those weeks entertaining a house guest and visiting Florida tourist attractions. Although the employee submitted several doctors’ notes during the leave, none verified that the condition was serious enough to render her unable to perform duties. She was subsequently terminated. In Gunzburger v. Sheriff of Broward County (11th Cir., 2010), the court found in favor of the defendant. The plaintiff’s activities were inconsistent with a need for FMLA leave, and she did not provide adequate medical proof of a serious condition.

For more on work/life issues, listen to our work/life webinar at www.BestPractices.DiversityInc.com.


  • I take care of my son who has congestive heart failure due to the complications of sickle cell anemia and he requires a blood transfusion every month. Also, I have diabetes which requires that I see my physician whenever my glucose level is high, which is quite often. My employers asked me use a time clock so that he could keep up with my time – no one else has been asked to use the time clock in the department. People come and go as they please, but I have to explain my every detail when I need to be off. My health condition is my business and I think that he can also use that against me and say that I use too much leave time. I am trying to be civil about the matter, but he does not seem to believe me, even with documented proof. Of course, I am a black female and he is a white male and I believe he is trying everything he can to terminate me. What should I do?

  • Anonymous

    I once let someone go whle on FMLA after giving birth. There was risk involved given that she was on FMLA and she was also in a minority group. The termination was the result of a work force reduction and was based on performance. I was required to put together a summary as to why she was being terminated instead of other employees who were in the same position as she was. The employee opened up a case with the EEOC, and I worked with HR to gather up all of the required documentation in order to prove that the termination was based on performance and no other reason. This employee seemed to have the idea that FMLA protected her from being terminated based on her reaction when I called to let her go. Given the summary that I wrote up, along with the documentation that I had had on past performance, , the EEOC threw out the suit.

    • Maybe the EEOC wasn’t the right agency the employee should have used, the employee would have been better off filing a civil suit in federal court where she may have also recieved
      punitive damages. See any time there is a case brought before a jury of working people, they generally have a tendency to side with the working employee’s who are on FMLA.

      • If the employee was basing her claim on anything covered by Title VII, she HAS to go to the EEOC before she can go to court. That’s the way the system is set up. I did an internship at the EEOC a few years ago, and if the EEOC decides not to pursue the case (or doesn’t find “cause”), then the charging party (complainant) then gets the “right to sue” in court. But the system is set up so people have to go through the EEOC before they can sue the company, if they’re claiming discrimination covered by Title VII. I think it’s a smart way to do things, because if the EEOC can’t find cause for the alleged discrimination, that means a judge/jury is unlikely to rule in your favor. Saves you legal costs, and if the EEOC DOES find cause, they can help you mediate with the company and possibly settle outside of court.

      • It doesnt matter how the EEOC rules. You can still file a civil suit even if they determine the employee does not have a case. I was let go from a job because I am diabetic and having complications. I filed with EEOC, they ruled against me so I filed in civil court and won.

  • Anonymous

    To the woman who posted above, I am sorry to hear about what is going on with you. But please do not assume that your manager is trying to get rid of you because you are a black female. As a manager myself, we are in a very challenging position in which we have to look out for the employee as well as look out for the company. One key element in a situation similar to yours is whether or not there is an impact to your job and whether or not it’s being done. FMLA does allow someone to be out for an extended period of time, but after 12 weeks, the employee is expected to return back to work. I once had an employee who was sick frequently and our company did not have a sick policy. So it ended up being a very gray area due to the number of absences that she had. What I ended up doing, which worked out for both the company and the employee, was having the employee put on intermittent FMLA. This way, her sick time counted against the 12 weeks, but due to the nature of her illness, she wasn’t required to take 12 weeks straight. You might want to try that avenue with your HR department. But remember that FMLA only protects your job for 12 weeks; anything more than that I believe can result in termination.

  • Anonymous

    To the woman who posted initiating this thread — get a professional opinion. Contact an attorney who’s specialty is Human Relations/Employment law. No one is going to admit to being a racist however, the fact of the matter is, since President Obama was sworn into office, racial incidents have steadily been on the rise. Consult a professional don’t let your career be ended because of someone’s intolerance. You may not be able to do anything about it but, at least you’ll know what your rights are,
    The most dangerous aspect of Institutionalized Racism is, it’s so insidious. It has become so much a part of the landscape, smooth and unobtrusive until it becomes almost invisible. It’s not until someone alerts you to it, is it really seen. Take for example Sarah Palin’s comment about the President speaking to a white Congressman “in an distrespectful and arrogant manner.) On the surface the statement is ludicrous at best, given the amount of education, the sheer number of personal accomplishments and last but not least HE IS THE PRESIDENT!!!! Her comment was ridiculous. However, it is upon a second look, that you realize her use of the word “arrogant” is so out of place. When was the last time (in US History) that a sitting President took a Congressman to task over an opposing view — and was denounced as “arrogant??!!!” It was a code word for BLack’s should be totally respectful and demur to a white male in every aspect whether he is right or wrong. This has been the prevailing attitude of white America in the US for centuries and it has not changed. Recently there was an article in Business Week?? stating that White America had lost it’s mind — because of a Black President getting in office.

  • Anonymous

    i called in sick due to chest pain and short of breath april 8, 2010 and hopitalized april 12 to 15 2010. then after one month have a gall bladder surgery. my doctor put me on std from april 8 to july 12, 2010. i have kept them informed and medical certificate provided during my absences. on july 1st, my manager told me that i need to come back on july 5, or i will be terminated. my doctor released date is july 12. i talked to HR and she said that by law my job is not protected anymore, i asked her why i do not have any information about fmla and i thought i’m using STD. she replied, i can check all the information thru website under dept. of labor. i write them a grievance letter that i want my job back and they cannot terminate me because i’m still sick and in pain, my job involved of lifting, bending and pulling patient. i’m a treatment nurse. my manager left me message, it’s ok, they will fix everything and she put me on schedule on july 16th. July 7 i called my manager, and asked her if she can extend my leave to august 6 because my sugery site still painful, and i’m having abdominal pain and occasional diarrhea due to gall bladder removal. and my doctor schedule me for a series of test, colonoscopy, ultrasound, blood test and abd. x-ray. my manager said it’s ok, that there is a lot of full time and part time nurses to covered me. i told her that i will give her my medical certificate. but after two weeks they have sent me a letter of termination, stated that i’m terminated dated july 12th due to fmla expired. is this right?

  • Just because you are still sick and in pain is not justification for your employer to not terminate you. Gallbladder surgery is typically does not require 4 months off work. I went back after 1 week (yes it’s uncomfortable, but you deal with it and it gets better) I too do patient care. Employers have to follow these guidelines or they go out of business.

    • WOW, bounce back from maternity leave in a week?

      • I went to work on my way home from the hospital after having a baby

        • yea but the potential for pain could be more or less depending on the quality of surgery or care provided. The thresh hold for individual pain is also not equal for every person. One person may be able to get right back to work, while others arent as healthy… one person may have fibromayalgia or lupus, or even aids.. so how anyone here would expect anyone else to be as perfect as thou self, is incredible to me.. its even worse to know that people are in complete favor of facist corporatism. I understand companies “got to make their money also” but come on.. youre talking about billions of dollars profiting companies, kicking employess to the curb because of their inability to heal because of all the poisons they have dumped on us in the first place.. get real people.

  • My father has health problems but have been good about attending to his job and is a hard working man. Yes, he’s taken some time off due to being sick and other health issues. But in the end he’s still able to attend to his work and do his job, well more than some others can as well. I’m quite upset that when he went in to give his paperwork of his oral surgery, he was told that if he wanted his job, he’s to cancel the appointment, or they’ll let him go. He chose to get his surgery, but, is that not wrong of them to just do that? I was thinking, he’d get something like a medical leave? He’d recover less than 12 weeks. at most probably 2 weeks?

  • I work for a Government employer in the Jacksonville, Florida area. I got injured at work. While out on a long term injury under work comp, I was notified that FMLA was being imposed on me. I thought that FMLA was an employee benefit, now it may be used as an employer weapon. A 4 to 6 week injury under work comp can easily turn into a 12 week, loss of job. I understand the work comp system, but don’t understand the FMLA being imposed. Now I am stressed about losing my job. Do I have any recourse?

  • Find an attorney who specializes in Employment Law.

    The economic downturn has been a boon for employers – it’s an employer’s market where they have a surplus of labor to choose from. Since Florida is a “right to work” state, many employers think they have carte blanche to do as they please. Those employers are wrong. They often make significant mistakes that a good attorney can catch. Seek out an attorney as soon as possible.

    You have two years from the date of the incident to file a lawsuit.

  • I must say something to this post, White Americans are not all racist. When I was only in Kindergarten my best friend was black, her sister was prejiduce and she taunted me, cussed me and threatened to beat me up because I was white. The word arrogant is just a word, if he was being arrogant he needed to be told so, there is a nice way of approaching people and obviously he was being rude or Sarah Palin would have never made this statement. America has lost its mind but not because Obama is black it is because he is not American. What kind of president does not stand for the flag salute? What kind of president takes three months to prove her was born in America? America voted him in because he was black, not because of his ability to lead our great country. Yes AMERICA has lost its mind. We are one nation under God and we have the right to our country to be ran by someone with dignity, intellegence, and a heart for the American people.

    • Luke Visconti

      Not too long ago, the village fool only bothered people in the village he/she lived in. Today, the Internet has enabled every village’s fool to bother people in every village. New York City’s village bigot, Donald Trump, can run around asserting that the President is not an American—and fools listen and parrot his bigoted language. I wish I knew if, in the privacy of his penthouse, he was laughing about fooling all these fools, but I’m not sure if his sense of humor trumps his racist rage.

      Certainly Donald Trump knows that George W. Bush (and the Republicans) had more than a year before the election and three months between Senator McCain losing the election and President Obama being sworn in to find out if then-Senator Obama wasn’t a natural-born citizen. Only fools would think that then-President Bush’s Attorney General wouldn’t turn over every stone. Only fools would believe this “birther” nonsense—or dirty, low-down, conniving, anti-American, filthy bigoted racists. Luke Visconti, CEO, DiversityInc

  • Hey Luke, your an asshole!

    • Luke Visconti

      Hey, Monte, it’s “you’re” not “your.” Did you eat a lot of paint chips when you were growing up? Luke Visconti, CEO, DiversityInc

      • Fed Up in the Garden State

        Indeed he is, Monte, especially if a common grammatical error is the best comeback he’s got!

        Cranial rectitis by the Left is why this County is in the mess we are in now!! Diversity Inc. Oh brother! That’s ONE pot that has LONG SINCE doth runneth over!! Does it LOOK like the USA is becoming a STRONGER NATION, the more “diverse” we are??? NO!! In FACT, just the OPPOSITE! Wake up!!

        With regard to the workplace, in reality, REVERSE discrimination is the norm. As companies look to “hallmark” a diverse workforce, qualified white Americans are being denied employment left and right, in favor of less qualified minorities, many of whom either don’t make it to unemployment eligibility or just barely do. A far greater attrition rate in this group, another undeniable fact!

        I’d much prefer a potato chip to ANY snack made by one of the Keebler Elves! Too much FUDGE PACKING for me!

        • Luke Visconti

          Normally, I wouldn’t allow a post like this to be published, mainly due to the last sentence, but this guy paints a nice picture of himself. Can you imagine the self-delusion needed to think that a company would hire “less qualified minorities” over people like him (cranky windbag jackasses)? I’d rather hire a trash can than work alongside someone like this. Happy holidays, smiley. Luke Visconti, CEO, DiversityInc

  • July 1st found out I was pregnancy with my 4 th child. I’m ultra high risk multiple health issues. I had cancer last year was told I should not have get pregnant again but this accident happened. Chemo and radiation with no real time off work except 3 weeks if vacation. No fmls ever filed. So when the July 1st thing happened I was put on std and Bedrest immediately knowing I wasn’t due until nov 30 th. My employer seemed like it was all good. I’ve been there 15 years and I’m a sr manager.. 12 weeks if fmla goes by I check in once a week no issues. Then I get a letter certified mail. Your fmla had expired if your interested in Maintsing your position complete the ploa application by sept 27. Floored me none ever said a word. I did that my dr said I could return to owork n feb 10 ..got another letter stating I’d you dint return by Jan 6 you will be severed. I asked later I have a csection scheduled for Nov 28. Jan 6 is not enough time for my dr to allow me to retun will are taking about 2 weeks here. . I was told my job is to vital I must return by this date with dr approvsl or be severed. .

    I never thought the company I love would ever do this. What should I do. They know I’m over a barrel. .

  • You did not answer the anonymous gallbladder patient’s well-articulate SPECIFIC questions. (Instead, you spoke in self-aggrandizing terms about your illness & your speedy return to work.
    After boasting about your stoic fortitude in returning to work in 1 week, your stated ANOTHER OF YOUR OPINIONS, “yes it’s uncomfortable, but you deal with it and it gets better.”

    how offensive.

    What are YOUR credentials? Are you an MD? If so, what type of doctor? Internal Med? GP? NeuroSurgeon? nevermind……

    • I agree with you totally rude of her. You know I believe we all have one of those in the office Superwoman.

  • I would like to find out how it is possible that one gets fired after getting an extension from the surgeon that operated my shoulder. I hurt my arm on the job, and for the purpose of this being on the internet I’m just going to say company XYZ. While I was working at company XYZ, I hurt my right shoulder and I requested an FMLA leave in August 2012. I had my first one for the month of September, then I got sent home in November because I couldn’t move my shoulder at all and the supervisor at Company XYZ was forcing me to do the job I couldn’t perform. My MRI was scheduled for December 2012, and little did I know that i had some torn tendons in my right shoulder since August 2012. Long story short, I had surgery January 2013, I had an extension up to the end of April, but got fired in March for no reason. Now my question is, after I had proof of my surgery, proof that my injury was as a matter of fact on the job, how and why would I get fired with an extension to my FMLA and it was approved?

  • I’m on fmla because I had surgery. I filled out paperwork and keep in contact with work. My work has been hiring a lot of new people. My boss has threatened to fire me (because of a work related injury). My job hours have already been given to others. There are no available hours left. I have 4 years there all my reviews have been excellent. I know when I return I will not have my full time hours. Can they basically take my job away from me?

  • betty scott

    Not sure if this thread is still active.
    My son was diagnosed end stage CF end of Jan. His only hope is a double lung transplant which requires relocation to another state. If he is not eligible for transplant he will be looking at Hospice care before long. I have missed work 2-3 times for dr. Apts-hospitalizations with him in another city. Usually out with him 3-4 days. I have always given prior notice. My employer has been notified I will be invoking my FMLA right. Six weeks ago I was transferred to another position as I was told it would be easier to cover for me when I am out with my Son. Same pay but less hours. Now, I have been told they cant keep doing this, (accomodate Dr appts)and my hours will be further cut and I likely will not be employed with them much longer. I give them at least 2 wks notice. They had told me numerous times I am a good employee and they would work with me any way possible…I am usually out 3-4 days at the beginning of the month… I am hurt. Is this legal? My employer is a very well known and respected businessman. I dont know what to do.

  • I’m on intermittent FMLA. Employed FT, 40 hours a week, Mon through Friday. I’ve only taken 76 hours in the four months I’ve been on FMLA. My certification says 8 to 12 hours per week may be needed. So I have been working FT since I got my FMLA approved with just a few days off for doctor’s appts and FMLA events.
    My HR dept sent me a letter stating next month my new work schedule will be Mon, Wed, and Fri. Tuesday and Thursday will be my FMLA days. Can they specify my FMLA days and reduce my schedule? I need the money and don’t need that much time off.

    • You should find out if HR is handling your FMLA leave or if another outsourced company is, then contact them in order to find the leave guidelines and if HR can do what you noted above.
      I work for a company that handles FMLA requests for another company of employees and I’ve never heard of HR being able to change the type of leave the employee has in the middle of leave type. Additionally, there are only so many FMLA hours or time available within a year, so your first day of absence or hours taken to be off using FMLA are being reduced from a total amount of time being available.
      If you have a reduced work schedule, then your time may be used quicker opposed to choosing the time for you. Which means that once your FMLA time is gone, then it is an easier way for HR to terminate you if they weren’t able to do so based on your job performance.

  • FMLA is one of the most abused things out there. Do not expect to be gone for months on end and have your job held. The gallbladder example was ridiculous. Other people who actually want to work and will show up will be happy to take your jobs in a minute.

  • So my dr put me out of work on October 24th due to complications with my pregnancy. I filed for NJ temporal disability. My employer sent me a letter of intentions to come back to work where my dr put no date to comeback since we didn’t know when I was coming back since my due date was March 18th. Well, yesterday ( 11/05/14) I received a letter terminating me because my dr is unable to determine when I may be able to comeback . And that the state in which I’m employed( NJ) does not offer short- term disability or the ability to request an unpaid leave and that my leave options are now exhausted. Now, I just had my baby dec 1st she was born at 24 weeks so she’s in the hospital. I thought I had up to 12 weeks after my delivery Date under the FMLA. Any advice on what to do will be greatly appreciated.

    • Sometimes, depending on your state, there may be additional job protection available once your federal FMLA has exhausted (assuming you qualified for FMLA). If you were, then you should see if any additional job protection is available under NJ.

      Again, with FMLA an employee must be with an employer who has at least 50 or more employees, the employee must have worked at least 12 months from the first date of absence under the leave and a total of 1250 hours with his/her company. There is only so much FMLA time available in a rolling calendar period, 12 weeks so let’s say, you were out for two months in the summer and then take another month out two months later; your FMLA would have been exhausted within that calendar year.
      Have to go for now but I’m willing to explain further if needed.

  • Beverly Smothers

    I’m trying to find out what to do, my husband was fired yesterday for having to take breaks to slow his heart rate down so he would not get zapped from his pacemaker. Can anyone help me

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