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Terminated while taking intermittent FMLA

Can an employer fire an employee who is taking innermittent FMLA days for an ongoing health issue under the care of a physican? Can this be done with no warnings and no request for a second opinion?

An employer can take any action against a worker who is on FMLA leave, that would have been taken anyway, if the worker was not on FMLA.

An employee who is on approved FMLA leave cannot be fired BECAUSE they are on FMLA. But FMLA does not protect a workers job, if he or she would otherwise be fired.


Judy works for an oil company. While she is on FMLA leave, the company lays off 27 people, eliminating their positions. Judys position is one that is eliminated. Judy can legitimately be laid off or terminated.

Rob stole $1,842 from the petty cash fund the day before he went on FMLA leave. The theft was documented on video tape. Rob admits the theft. The company has a firm policy of terminating employees who steal. Rob can be terminated for the theft, even though he is on FMLA leave.

Jennifer is a keypunch operator who is supposed to punch in 125 characters per hour. She goes on maternity leave. While she is gone, the monthly productivity reports come out. Jennifer has been punching in only 85 characters per hour, for the time that she worked. Jennifer can legitimately be terminated for poor performance. (Note, however, that Jennifer cannot be held responsible for work that she missed, while out on FMLA leave.)

Simply being under a doctors care does not automatically entitle an employee to FMLA leave. The employee must complete the FMLA forms, usually including certification by a doctor that FMLA is necessary. New changes to FMLA in 2008 give employees slightly longer to respond to an employers request for clarification, or to fix a clerical error in the FMLA forms. The FMLA is enforced by the US Department of Labor at It is always possible to hire a private attorney specializing in employment law.

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This entry was posted on Tuesday, September 23rd, 2008 at 8:42 am and is filed under
Human Resources Management, Termination.
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2 Responses to “Terminated while taking intermittent FMLA”

  1. Melinda Says:

    I was terminated over the phone today for “performance” I have been on approved FMLA since 2/11/2010 to care for my Father who has Alzheimers, i have only used 8 sick hours to take care of his Dr. Appt.s. I have taken advantage of the empoyers EAP and getting counseling 1 day a week (over my lunch hour) to be able to improve my work/life/balance. I came off a PIP in October 2009 and had been told my work is improving, until today -no verbals, written warnings or final warnings regarding my performance. I feel i was terminated in retaliation for utilizing the EAP to improve focus at work and for asking and being certifed to be on FMLA because i am primary care given for my father.

  2. Caitlin Says:

    Hi Melinda! If you feel that you were fired as retaliation for taking time off under FMLA, then you should file a complaint with the US Department of Labor at

    Using the EAP is a little more complicated, because there is no law that prevents an employer from discriminating against employees who desire a better work/live balance. (If the EAP is a healthcare provider, and they passed this information along to the employer, that is a violation of HIPAA.) If the employer fired you because of your association with someone who is disabled (your father), that is illegal discrimination under ADA. Or, if they fired you because they believe you have a mental illness or disability, that is also a violation of ADA. You can file a complaint with the EEOC at You may also want to contact an attorney. HTH, and thanks for reading the blogs!~ Caitlin

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