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Can you be laid off while on FMLA leave?

Work is about more than money. It is about dignity. This is one reason why being laid off can feel like a personal attack. It can feel especially galling when you are laid off while on FMLA when you though your job was protected.

Can you be laid off while on FMLA leave?

In practice, yes, it can happen. Whether or not it is legal is another matter entirely. Specifically, FMLA regulation 825.216(a) theoretically allows it, but only if your job would have been eliminated even if you had not been on FMLA leave.

What does that mean?

FMLA regulation 825.216(a) has three factors.

  • First, an employee has no greater protection on FMLA leave than someone not on FMLA leave.
  • Second, your job is only protected to the extent that it is at risk as a result of the FMLA leave itself or the underlying reason for taking the FMLA leave.
  • Third, if you are laid off during your FMLA leave, your employer has the burden of proving it is for an allowable reason. In other words, they have the burden of proving that you would have been laid off, even if you had not been on FMLA leave.

The burden of proof

It is the third factor that causes the most issues for employers and that gives employees the most recourse. Why? Essentially, because courts assume it was a wrongful termination until the employer can prove that it was not.

And, unless, the employer has their proof buttoned up and ready to go, the employee will have a relatively good case.