You are being notified more than 60 days in advance of your layoff. Therefore, your employer is in compliance with WARN. Your FMLA leave has nothing to do with this calculation. I hope this clarifies things for you, and I wish you the very best in your search for new employment.
This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.
The WARN Act only requires 60 days notice to you. FMLA protects your job while you're on leave. It does not protect your job when you return.
In short, then, the answer to your question is: Yes, the WARN notice can be provided while you're on FMLA leave.
I'm sorry this happened to you, and I wish you luck.
Your WARN notice period is not extended by your FMLA leave.
My answers to questions posted on AVVO are intended to provide general information only, and are not intended to be legal advice. Employment law issues typically require a careful case-by-case analysis. Consequently, if you feel that you need legal advice, I would encourage you to consult in person with an employment attorney in your area.
Yes, it is not against the law to lay off an employee while he/she is out on FMLA leave UNLESS the reason is BECAUSE of the leave. If you would have been laid off regardless of your leave or the reason for the leave, you can be laid off while out on FMLA leave.