Terminated While on Leave

Increasingly, most Americans do not take days off. However, there are some circumstances in which it is necessary to take leave from a job, such as when you need to undergo medical treatment, when a child is sick, or when a spouse in the military is injured. Under the Family and Medical Leave Act, you are supposed to be able to take a job-protected leave. If you are terminated while on leave in Texas, you may have recourse. At Austin Employment Lawyers, P.C., our Austin FMLA lawyers may be able to help.

Texas does not mandate that private employers provide sick leave or any other type of leave to employees. However, employers with 50 or more employees who are located within 75 miles of one another must provide leave under the federal Family and Medical Leave Act (FMLA) to eligible employees for specific reasons. Even though the leave is unpaid, your job is protected. You can receive disability benefits while out on FMLA leave.

Your employer is not supposed to fire you or lay you off on FMLA leave, as long as you do not exceed the 12 weeks to which you are entitled. When you get back, you are supposed to be returned to your position or a substantially similar position. But what happens if you are terminated? What is your recourse?

An employer cannot fire you simply for taking FMLA leave or asking for FMLA leave to which you believe in good faith that you are entitled. If you are terminated during leave, the proximity of the leave and the termination decision may suggest that you were terminated for taking the leave.

Employers may argue that you would have been terminated even if you had not taken the leave. For example, an employer may claim that you had poor job performance before you took the FMLA leave. However, if your employer knew of issues before you took the leave but did not address them prior to the protected leave, the termination may be unlawful retaliation. These situations can be fact specific. Therefore, it is important to discuss your situation with a knowledgable employment attorney.

Employers are able to terminate an employee who happens to be out on FMLA leave when the employee's entire department or division is eliminated. The employer will also be able to terminate an employee if all similarly situated employees are eliminated. That is because the employee is not being singled out.

Additionally, you can be terminated if you do not go back to work after the FMLA leave expires, as long as other legal protections do not apply. For example, if you remain disabled, your employer should discuss with you in good faith a reasonable accommodation to come back to work under the Americans with Disabilities Act. The issue will be whether there is a reasonable accommodation under the ADA that would allow you to perform the essential job functions.

It is illegal for your employer to terminate you because you are disabled if you are able to perform the essential functions of your job. A disability under the ADA is a mental or physical impairment that substantially restricts a major life activity. The ADA covers employers with a minimum of 15 workers, covering a broader range of entities than the FMLA.

If you are terminated while on leave to which you were entitled, you should consult a wrongful termination attorney. You may be able to recover monetary damages or other remedies. The Austin attorneys at Austin Employment Lawyers, P.C. represent employees in cities such as Austin, Georgetown, Round Rock, Cedar Park, Pflugerville, Leander, Del Valle, Kyle, San Marcos, San Antonio, New Braunfels, and Fredericksburg. Call us at (512) 271-5527 or complete our online form to set up an appointment.