The Family and Medical Leave Act (FMLA) prohibits employers from terminating an employee for using authorized FMLA leave. The act also protects employees who oppose any unlawful practice or are involved in any proceeding related to FMLA. Both employers and employees must fit certain criteria to be covered by FMLA.

Qualifications for FMLA protection

All federal, state, and local governments and public and private schools must uphold FMLA. Private employers must have 50 or more employees for at least 20 weeks a year to be covered by the law.

Employees are eligible for FMLA leave if they have worked at a job for at least one year and for at least 1,250 hours. Up to 12 weeks of unpaid leave can be granted to eligible employees for the following reasons:

  • Birth and care of a newborn

  • Placement and care of an adopted or foster child

  • Care for a spouse, child, or parent with a serious medical condition

  • Care for a serious medical condition that prevents the employee from performing his or her job

  • Care for a family member in the armed forces undergoing medical treatment for a serious injury or illness. In this case, leave can be extended to 26 weeks.

Some states offer additional family and medical leave protections. Eligible employees are protected by whichever laws are the most generous.

FMLA wrongful termination and exceptions

If the above requirements are met, an employee is entitled to request leave and to have his or her job (or an equivalent job) restored when the leave is over. An employer can't retaliate against an employee for taking leave by firing him or her.

An employee on FMLA leave may be terminated, however, if the reason isn't retaliatory. If the employer needs to reduce staff, for example, employees on leave are not entitled to any greater protection against layoffs than other staff.

If an employee takes leave to treat a serious illness, an employer may require medical certification that an employee is fit to return to work once the leave has concluded. The employee may be terminated if he or she was notified of this requirement and fails to comply.

Filing a FMLA-based wrongful termination charge

If you believe you were wrongfully terminated, you may file a discrimination charge with the nearest Wage and Hour Division of the U.S. Department of Labor's Employment Standards Administration. You don't need a lawyer to file a complaint. You should file as soon as possible but no later than two years after the violation.

The agency will review the complaint and may try to solve it administratively or file its own lawsuit. You may file a private lawsuit without notifying the Department of Labor. It's a good idea to get legal counsel if you pursue a private lawsuit.

Additional resources:

U.S. Department of Labor: Compliance Guide to the Family and Medical Leave Act

U.S. Department of Labor E-laws: Family and Medical Leave Act Advisor