Can an Employer Fire an Employee When They Are on Leave?
June 2, 2023
Taking a leave of absence is essential for employees who need to attend to personal and medical needs, as well as family emergencies. But the big question is: can an employer terminate an employee when they are on leave?
Like with many legal questions, there isn’t a yes or no answer here. It all depends on various legal protection laws that cover employees.
Knowing your rights as an employee and what you're entitled to as an employer can ensure that everyone stays in line with the law. Wrongful termination doesn't just affect the employee — these sorts of suits cost employers an average of over $5,000 per case.
In this blog post, we'll explain these laws and how they can protect employees from being fired while on leave. If you need immediate assistance or legal representation, contact our firm in Dayton, Ohio, to schedule a consultation.
Laws That Protect Leave Rights
The first step to understanding your rights is to know the laws that protect it. These laws protect employees' leave rights, entitling them to take leave from work in various situations, including illness of a child or family member, pregnancy, and other medical conditions.
Let's take a closer look at the laws that provide termination protection for employees, as well as their exceptions.
Family and Medical Leave Act (FMLA)
The FMLA provides protected leave for eligible employees for specific medical conditions that require them to take off from work or to care for a family member. FMLA also provides job protections to employees on leave and ensures the continuation of their health insurance.
However, it's important to note that FMLA job protection is not absolute. An employer can terminate an employee during FMLA leave under certain circumstances that are unrelated to the leave itself.
For example, if an employee is involved in serious misconduct or if their position is eliminated due to a legitimate business reason, termination may be permissible even while they are on FMLA leave.
In addition, if an employee exhausts their FMLA leave entitlement or fails to meet the eligibility requirements, the employer may terminate their employment. FMLA leave is generally limited to 12 weeks within a 12-month period and has specific eligibility criteria, such as the requirement of needing to have worked for the employer for at least 12 months and having worked a certain number of hours during that time.
Ultimately, while the FMLA provides significant protections to employees on leave, there are circumstances in which termination may still be possible, albeit unrelated to the FMLA leave itself.
Americans With Disabilities Act (ADA)
ADA prohibits employers from discriminating against an employee because of their disability. If the employee requires an extended leave due to their disability and cannot perform their job's essential functions, the employer must make reasonable accommodations.
If an employer terminates an employee on such leave, it could be viewed as discrimination under ADA. There are certain limitations to the employer’s obligation to provide accommodation, though. For instance, if an employee’s extended leave would impose an undue hardship on the employer or if the employee is unable to perform essential job functions even with reasonable accommodations, termination may be acceptable.
That said, if an employer terminates an employee on an extended leave due to a disability without considering reasonable accommodations, it could be viewed as discrimination under the ADA. The specifics of each case can vary, and legal advice should be sought for specific situations to ensure compliance with the ADA and other applicable laws.
Pregnancy Discrimination Act (PDA)
PDA prohibits employers from discriminating against pregnant employees. If a pregnant employee requires leave or accommodation due to her pregnancy condition, the employer must accommodate them, as long as it doesn't cause undue hardship to the business.
If an employee is terminated while on pregnancy leave, it's a violation of the PDA when the termination is based solely on the employee’s pregnancy or a related condition.
Ohio state law also provides protected leaves to employees for various reasons. For example, employees are protected under the Ohio Revised Code for taking leave for the following reasons:
donating organs or bone marrow,
jury duty, and
While these types of protected leaves generally provide job protection, they may have limitations or specific conditions attached to them. For instance, there may be requirements regarding advance notice, documentation, or maximum duration of the leave.
Additionally, Ohio state law may not protect all employees, as there are eligibility criteria and coverage thresholds in place. It's important to consult the specific provisions of the Ohio Revised Code and consult an employment law attorney for detailed information on the protected leave rights provided by the state.
Circumstances in Which an Employer Can Terminate an Employee on Leave
Employment contracts typically contain provisions on what constitutes a valid reason for termination. Moreover, the contract may also specify the period of notice an employer must provide before terminating employment.
An employment contract serves as a binding agreement between both the employer and the employee, and in situations where the employer breaches the terms, the employee can take legal action, including terminating an employee on leave.
Another thing to consider are probationary periods, which are typically the first six months of employment. During this period, the employer can terminate an employee’s contract without cause. They do not have to provide an explanation, and employees in their probation period do not have the same terminable rights as employees who are not in their probationary period. Employees who have recently been hired and are on leave can still be terminated during their probation period.
An employer may also terminate an employee on leave when there is just cause. Termination for just cause usually happens when an employee commits a significant breach of conduct, such as theft, harassment, or insubordination.
If an employer believes there is a just cause to terminate an employee, they may do so without notice of termination or cause. Still, they must prove that the action is reasonable and not discriminatory.
Circumstances in Which an Employer Cannot Terminate an Employee on Leave
In addition to the laws described above (FMLA, ADA, etc), there are a few other circumstances in which an employer cannot terminate an employee on leave.
One is if you are injured on the job. If that is the case, you may be eligible for workers' compensation benefits. These benefits typically include medical treatment, rehabilitation, and wage replacement. While you are receiving these benefits, your employer cannot terminate your employment, without risking a lawsuit for retaliatory discharge.
Employers are also prohibited from terminating employees who take leave for military service. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employers must re-employ the individual upon their return from military service, provided that the leave did not exceed five years.
This includes providing the individual with the same pay and job position as they had before taking leave.
Dedicated Legal Guidance: Duwel Law
If you're an employee on leave who has been terminated or an employer considering terminating an employee on leave, it's vital to speak with an employment law attorney. We'll guide you through all aspects of wrongful termination, regardless of which side of the case you're on.
That's where Duwel Law comes in.
Our family-owned firm in Dayton, OH, has over 50 years of experience representing both employers and employees, so rest assured we have the knowledge and expertise to help you navigate this complex area of law. We serve Dayton along with neighboring areas throughout Montgomery County, Miami County, Greene County, Darke County, and Warren County. Don't hesitate to call us and get the legal guidance and representation you need.