FMLA Wrongful Termination


The Family and Medical Leave Act (FMLA) is a federal law that protects an employee’s right to take unpaid leave for qualified personal and family medical reasons. The law provides up to 12 weeks of unpaid, job-protected leave each calendar year. It also stipulates that employers cannot consider an employee’s qualified FMLA leave as a factor in employment-related decisions such as termination, layoffs, discipline, and promotions.

What are the qualifications for FMLA?

FMLA only applies to employers with 50 or more employees, so small businesses with less than 50 employers are exempt from federal regulation. For an employee to be eligible, the employee needs to be with the company for at least one year, and the employee must have worked at least 1,250 hours during the previous year. Eligible employees can take up to 12 weeks of unpaid leave for the following reasons:

  • A chronic health condition that inhibits an employee from fulfilling their job
  • Caring for a newborn child (within one year of birth)
  • Caring for a spouse, parent, or child with a chronic health condition
  • Certain emergency circumstances where the employee’s spouse, child, or parent is with the military on covered active duty
  • The adoption or foster care of a child (within one year of placement)
  • The birth of a child

Note that FMLA also guarantees military caregiver leave for the spouse, child, parent, or next of kin to a service member who has a serious injury or illness. Military caregiver leave allows up to 26 workweeks of unpaid leave during a 12-month period.

What does an employee need to do to be compliant with FMLA?

Employees are generally required to provide their employer with 30-days-notice before taking qualified FMLA leave. When an urgent situation makes the 30-days-notice impracticable, the employee should still provide as much notice as possible. If an employee fails to provide practicable notice, their leave may not be protected under the FMLA.

What does an employer need to do to be compliant with FMLA?

Covered employers are required to provide notice to employees of their rights and obligations under FMLA. Employers usually fulfill the notice requirement by doing the following:

  • Adding a detailed notice and explanation of FMLA rights to the employee handbook
  • Tracking an employee’s “banked” unpaid time off, and notifying the employee that their leave will count against the banked FMLA time off
  • Posting notices in common areas of the workplace
  • Formally designating a leave of absence as an approved, qualified FMLA leave

As long as an employer fulfills their notice requirements under the FMLA, the employer retains the right to terminate an employee for legitimate reasons that are unrelated to the employee’s unpaid leave. However, when an employer fails to fulfill their notice requirements, it may excuse any failure on the employee’s part to file proper notice of a request for FMLA leave with the employer.

Protection against employer retaliation

In addition to an employee’s right to take unpaid leave for qualified personal and family medical reasons, employees are protected against employer retaliation for participating in protected activities under the FMLA. Protected activities include:

  • Filing or being a witness in an FMLA charge, complaint, investigation, or lawsuit
  • Communicating with a supervisor or manager about employment discrimination or harassment regarding the use of unpaid FMLA leave
  • Answering questions during an employer investigation
  • Refusing to follow orders that would result in discrimination against an employee who is taking qualified FMLA leave

FMLA justified termination

An employee cannot be terminated in retaliation for their qualified use of FMLA. However, that doesn’t bar employers from terminating an employee altogether. Employers retain the right to terminate or discipline an employee for legitimate, unrelated reasons such as performance, attendance, and infractions of company policies. If the company needs to do layoffs, employees who are taking qualified FMLA leave shouldn’t receive any special consideration and are therefore just as susceptible to layoffs as every other employee in the company.

When employees request FMLA leave to treat a chronic health condition, the employer has the right to require medical certification from the employee’s physician. These certificates usually validate the chronic illness and offer guidance as to how long the chronic illness may last, how much time off the employee will need, and when they may be fit to return to work. If an employee fails to submit a required medical certificate to their employer, the employee may be terminated for their failure to comply with company policy.

FMLA wrongful termination

The FMLA is administered and enforced by the Department of Labor’s (DOL) Wage and Hour Division (WHD). If you have been terminated due to your qualified use of unpaid FMLA leave, you can file a complaint with the WHD. Depending on the legitimacy of your claim, the WHD will launch an investigation into your employer. You also have the right to file a civil suit against your employer to seek compensation for the damages incurred by your wrongful termination.

You don’t need a lawyer to file a complaint with the WHD, but it’s always a good idea to consult with an attorney first to help you assess and build your case. Keep in mind that there is a statute of limitations for wrongful termination complaints, so you’ll need to file a complaint within two years of the incident.

What damages are you entitled to in an FMLA wrongful termination suit?

If your wrongful termination lawsuit is successful, you may be entitled to the following damages:

  • Back pay – this refers to salary, wages, and benefits that you lost as a result of your wrongful termination. Lost back pay is calculated from the time of your termination to the date of the final judgement for your case.
  • Front pay – this also refers to salary, wages, and benefits lost as a result of your wrongful termination, but it applies to the period of time going forward from the final court judgement. For example, if the court reasonably expects it may take you up to six months to find a new job with comparable compensation, your front pay could include up to six months’ salary, wages, and benefits.
  • Liquidated damages – these damages are automatically tacked on to your final judgement unless the employer can prove it made an honest mistake in your wrongful termination. Liquidated damages are typically equal to the back pay and front pay awarded in the judgement.
  • Emotional distress – the FMLA does not award damages for emotional distress, though some state laws allow for emotional distress damages in wrongful termination cases.
  • Punitive damages – the FMLA does not impose punitive damages, but applicable state laws may allow the court to award punitive damages outside of the FMLA.
  • Court and attorney fees – as long as your case is successful, the court will award you with enough additional funds to cover your attorney’s fees and court costs.

Need Help With An Employment Law Issue?

The state of Arizona is a great place to live and work, but knowing the employment laws will help you a lot. Whether you are a newcomer to the state or a lifelong resident, understanding your workplace protections is good for your career, and the more you know, the better.

Employment law issues can cause extreme distress and can affect productivity on the job. If you are being harassed at work, or dealing with any other employment issue, consider talking to our AZ employment law team to help you settle your case.

Call our Employment Law team at (480) 464-1111 to discuss your case today.

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