Is Termination Permissible When a Worker is on FMLA Leave?
There’s no feeling in the world like that of becoming a father. Babies grow quickly, though, and you want to be there for all the changes, particularly in the first year. That’s one of the primary reasons that Congress enacted the Family and Medical Leave Act (FMLA), so that fathers could take paternity leave in the days, months and weeks right after a child is born, without fear of losing their jobs. But does the FMLA (or any other law) absolutely prohibit your employer from firing you while you are on paternity leave? No, it does not.
What Is the FMLA and What Does It Protect?
The Family and Medical Leave Act (FMLA) is a federal law that allows qualified workers to take a period of unpaid leave and protect employment. Under the FMLA, eligible employees can take up to 12 weeks of uncompensated, job-protected time off in any 12-month period. The circumstances that allow a worker to take FMLA leave include the birth of a child, the placement of an adopted child or foster child in the home, the need to care for a family member with a serious health condition, or a serious health condition the employee has that makes it impossible for him or her to work. The provisions relating to the birth of a child allow both mothers and fathers to take FMLA leave.
Can an Employer Terminate a Worker Who Is on Paternity Leave?
The prohibitions against termination in the Family and Medical Leave Act apply only to firing for taking leave or based on any other reasons related to the FMLA leave. When terminating an employee who is on qualified paternity leave under the FMLA, the employer must demonstrate that the action had nothing to do with the leave. Examples of legal termination while on paternity include:
- A failure to properly apply for FMLA leave or misrepresentation is the application for leave
- Poor job performance by the employee prior to termination
- Declining sales or production at the company
- Discontinuation of the position held by the person on leave due to changes in production or process
- Misconduct or fraud by the employee, including violation of company rules or policies
If your employer needs to fill a position while an employee is on qualified FMLA leave, and one of the above situations does not apply, the employee must either have his job back or be placed in a position with equal pay, equal benefits and equal responsibilities.
What Happens If an Employer Wrongfully Terminates an Employee on FMLA Leave?
When a worker’s rights are violated under the FMLA, the worker may file a civil lawsuit seeking damages. The claim must be filed within two years of the violation. If the violations cannot be satisfactorily resolved, the U.S. Department of Labor has the authority to bring a legal action in court to compel compliance with the FMLA.
Contact the Experienced Employment Law Attorneys at Bailey & Galyen
At the law office of Bailey & Galyen, we fight for the rights of employees in Texas, helping make certain that employers do not violate the state and federal laws that protect workers. We offer a free initial consultation to every client. To schedule an appointment with a knowledgeable and thorough employment lawyer, contact us by e-mail or 844-402-2992 call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.