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Understanding FMLA Termination

The discretion of employers to fire employees who were on leave declined substantially after federal and state laws were enacted in regards to leaves of absence. Employees who take a temporary leave from their jobs under the Family and Medical Leave Act are protected. Under the law, employers are not able to use the employee’s taking of qualified leave as grounds to terminate him or her or for other negative job actions.

What employers must do to comply with the FMLA

Employers must comply with the FMLA’s notice requirements and notify their employees of their obligations and rights under the FMLA, including by doing the following:

  • Post notices in conspicuous places at work;
  • Include detailed explanation of FMLA rights in handbooks;
  • Designate a leave specifically as a leave under the FMLA; and
  • Inform employees that their taking of a leave will count against their available FMLA leave time.

When does the FMLA apply?

The FMLA does not apply to all employers and employees. Instead, it only applies to those that meet specific qualifications. For employers to be covered by the FMLA, they must have 50 or more employees who work within a 75-mile radius of each other. Covered employees are those who work for covered employers who have worked for at least 12 months and have worked a specific number of minimum hours during that time.

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Schedule an appointment today.
Call (856) 685-7420 or

If your employer failed to properly notify you as described, the lack of proper notice by your employer may negate your own failure to provide proper notice to the employer of your need to take leave.

What employees must do under the FMLA

Under the FMLA, you also have certain requirements. You must provide as much notice of your need to take leave as possible or provide 30 days notice. If you do not provide timely notice, your leave may not be protected by the FMLA. If you comply with the notice requirements, you are entitled to take up to 12 weeks of unpaid leave in a 12-month period.

Terminating workers

If your employer has a legitimate reason unrelated to your leave to fire you, the FMLA does not prevent your employer from doing so. Some examples of legitimate and non-discriminatory reasons include the following:

  • If you would have been terminated anyway because of your poor job performance
  • If you failed to meet the goals of a corrective action before you took leave
  • If your employer discovers poor performance or infractions while you are on leave
  • Engaging in prohibited conduct while you are on leave

You may also be considered for a layoff if there is a reduction in the workforce while you are on FMLA leave as long as your employer doesn’t choose you specifically because you took FMLA leave.

How FMLA cases are evaluated by the courts

Employers that fire employees are generally protected as long as the terminations were for nondiscriminatory and legitimate reasons that are unrelated to taking leave under the FMLA. In a case involving FMLA discrimination, employers must be able to show that they would have terminated or laid off the employees regardless of whether the employees took FMLA leave.

If you believe that you are a covered employee under the FMLA and that your employer has retaliated against you for taking or requesting protected leave, you may have legal rights. Contact Swartz Swidlers for an analysis of your potential claim.

Most Frequently Asked Question: Do I Have A Case?

While it is true that every case is different, The law is pretty clear in most cases. The best way to determine if you have a case is to contact one of our attorneys. For more information check out the FAQ below or visit our FAQ Page

Most Frequently Asked Question:
Do I Have A Case?

While it is true that every case is different, The law is pretty clear in most cases. The best way to determine if you have a case is contact one of our attorneys. For more information on a just a few scenarios checkout the flip box FAQ below or visit our FAQ Page.

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Cherry Hill, New Jersey 08034

Phone: (856) 685-7420
Fax: (856) 685-7417

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Philadelphia, PA 19107

Phone: (215) 995-2733

Our Locations

Cherry Hill Headquarters

1101 Kings Hwy N
Suite 402
Cherry Hill, New Jersey 08034

Phone: (856) 685-7420
Fax: (856) 685-7417

Philadelphia Satellite Office

123 South 22nd Street
Philadelphia, PA 19107

Phone: (215) 995-2733