Can I be Fired While on Medical Leave?

September 15, 2013

One of the more common employment law questions people ask is: “Can I be fired while on medical leave?” The answer to this question is not a simple yes or no; a variety of circumstances have to be taken into account, so let’s try to unravel this a little bit.

The short answer to the question is, yes, in many cases it is legal for an employer to terminate someone’s employment while they are off the job due to illness. This is because in most states (including here in Georgia), employment is considered to be “at-will,” meaning the employer has the right, at least in theory, to hire and fire at any time and for any reason. However, federal law does afford certain rights and protections to employees (for example, even in at-will states, it’s still illegal to fire someone for reasons related to retaliation or discrimination, and in certain cases, medical issues). So if your employer has fired you while you were on leave for health/medical reasons, don’t assume you have no recourse.

In particular, there’s one federal law you need to know about: the Family and Medical Leave Act (FMLA). This law affords a level of protection by requiring eligible workplaces to allow the employee twelve weeks of unpaid leave per year, either to receive medical attention themselves or to care for a sick family member. Employees cannot be lawfully fired while on medical leave under the protection of the FMLA. That being said, the FMLA doesn’t apply to everyone; there are certain conditions that must be met. Among them:

• The FMLA only applies to business with 50 or more employees.
• You must have been with the company for at least a year before taking medical leave.
• You must have worked at least 1250 hours with the company over the previous 12 months.
• You must be on leave for a reason covered by the FMLA (for example, caring for a newborn, or for a “serious health condition”).
• You need to specify to your employer that you are taking leave under the FMLA.

If any of these conditions are not met, or if you exhaust the 12-week time frame and are unable to return to work, the employer can legally fire you. Also, bear in mind that the FMLA affords you unpaid leave, so the employer is not required to pay you for the time you’re gone.

Of course, if for some reason the FMLA does not cover you, you may have other options if you feel you’ve been wrongly fired while on medical leave. If your condition qualifies as a disability, there may be certain provisions of the American Disabilities Act (ADA) that apply to your case. Also, in some situations you may have recourse if you were on paid sick time that was part of your employment package at the time of termination. If you have been fired while on medical leave and feel you may have been wrongfully terminated, get the facts about your particular situation by contacting the U.S. Department of Labor, the Georgia Department of Labor, and/or consulting with one of our attorneys.