The Family and Medical Leave Act (FMLA) grants all employees within the jurisdiction the right to take unpaid leave. However, the leave is applicable only in cases of serious personal consequences. For instance, you can’t apply for an FMLA leave to de-stress yourself.
However, your job stays secure. Even then, experts say FMLA leave doesn’t mean your responsibilities disappear or that problems can’t arise while you’re out.
Bad intentions don’t cause most issues. However, a deadline miss, lagging paperwork updates, or prominent miscommunications between the employer and the employee may lead to it. In some cases, that confusion leads to disputes, job loss, or even fraud investigations.
If you’re planning to take leave or you’re already on it, here’s how to protect your job, avoid common missteps, and keep your employer from questioning whether you’re using the law properly.
Know When FMLA Applies (and When It Doesn’t)
FMLA doesn’t offer immunity against all circumstances. It is also not applicable to all leave requests, as it adheres to employment laws. FMLA applies only if:
- Your employer has at least 50 employees within a 75-mile radius
- You’ve worked at least 1,250 hours over the past 12 months
- The reason for leave qualifies under the law
Covered Reasons include:
- Your serious health condition
- Caring for a spouse, parent, or child with a serious condition
- Bonding with a new child (birth, adoption, or foster)
- Some military family situations
You can take FMLA leave for minor illnesses, general stress, or routine time off linked to medically certified conditions only. It’s also important to confirm eligibility with HR before assuming coverage.
Can You Lose Your Job While On FMLA Leave?
No employer can fire you for retaliatory reasons for requesting FMLA leave. It is generally known to all. The retaliation might include a sudden demotion, reduced pay or bonus cut, unfavorable reassignment, or termination.
If you have met any of these consequences in your workplace, it’s time to see a labor and employment attorney.
However, experts say there are subtle grounds to terminate you from your job when you return from the FMLA. Meanwhile, your employer should have a non-retaliatory, legitimate, and non-discriminatory reason to terminate you.
If there is such a valid ground, the employer will effectuate the termination, irrespective of your FMLA leave status. Some common and legitimate reasons for terminating people who are on their FMLA leave are:
- Poor performance of the employee or apparent misconduct on their end, before taking the FMLA leave
- Evidence to validate the termination, irrespective of whether the employee is on leave. For instance, documentation of a downsizing in the office before the employee appealed for the FMLA leave.
These legitimate and nondiscriminatory reasons might be only facades for a real, deliberate, and discriminatory reason. For example, the employer may claim your performance was poor. However, the allegation of poor performance may not be entirely accurate. Or, even if the allegations are legitimate, they might only be a pretext for discrimination.
Example #1
An employer’s legitimate reason for firing an employee on FMLA leave could be that the employee was repeatedly late for work. However, legal analysts say that it could be a rather theoretical reason.
On practical grounds, you need to verify whether the employer fires someone else who consistently arrives late for work every day. Secondly, you have to check the actual employer’s policy handbook. Find out what are the documented policies to penalize someone coming in late?
If you think you are being terminated for a superficial cause, contact your labor and employment attorney today. The attorney’s role won’t be limited to examining the employer’s actual policies and practices to investigate whether the discrimination is a legitimate claim.
He would also scrutinize other grounds on which you might be mistreated during the FMLA leave.
Start With a Clear, Complete Request
Even if your situation feels urgent, don’t skip the formal process. You must follow these pointers:
Provide Reasonable Advance Notice
If the need for leave is foreseeable, such as for surgery or childbirth, your employer can require 30 days’ notice. In the event of an unexpected situation, please notify them as soon as possible.
Avoid vague messages like “I won’t be in for a while.” Be clear that your absence is related to a medical or family issue and that you believe it may qualify under FMLA.
Use the Certification Form
Most employers use a Department of Labor template or a company version of it. Make sure the form:
- Describes the medical condition in terms that match FMLA criteria
- Lists the likely duration of treatment or recovery
- Includes contact info for the provider
If your certification is missing information, the employer may delay or deny your leave. Some may request clarification or a second opinion, but they have to follow a formal process to do so.
Keep Records of Everything You Submit
Don’t assume your forms or emails were received or saved.
- Keep copies of every form you complete or send
- Save confirmation emails or HR replies
- Note dates of phone calls and what was discussed
This doesn’t mean you expect a fight. It means you’re prepared if a problem comes up, especially if a new supervisor takes over or HR changes hands.
Communicate During Your Leave
You can’t ignore these communication protocols:
Update Your Employer on New Developments
If your condition improves more quickly than expected, or if you require more time than planned, please notify your employer as soon as possible. They may request updated documentation.
Avoid disappearing or going silent. That’s when employers get concerned and start asking questions.
Know What They Can and Can’t Ask
Your employer can:
- Request updates related to the timing and status of your return
- Ask for recertification (usually no more than every 30 days, unless circumstances change)
They can’t:
- Demand a diagnosis or personal medical details
- Require daily check-ins
- Penalize you for taking leave that’s been approved
If a manager appears overly aggressive or controlling during your absence, keep a record and bring the concern to the attention of HR.
Use Leave Only for Its Intended Purpose
Once your leave is approved, you’re expected to use it for the reason listed in your paperwork. That doesn’t mean you have to stay in bed all day, but it does mean your activities should align with the condition described.
For example:
- Caring for a parent doesn’t prohibit grocery shopping, but extended vacations might raise concerns
- Recovering from surgery might allow light walking, but not competitive sports
- Intermittent leave for migraines may justify late arrivals, but not random Fridays off
If something looks inconsistent to your employer or coworkers, say something; you could find yourself under scrutiny.
Be Careful About Social Media
What you post publicly can be taken out of context—or used against you.
If you’re on medical leave and posting from a concert, a beach, or a sporting event, your employer may start asking questions. Even if your activity is consistent with your condition, it’s best to be cautious.
In some cases, employers use outside firms to look into possible misuse. According to Conn Maciel Carey, LLP, which advises companies on how to handle FMLA fraud investigations, documentation gaps, inconsistent behavior, and unsupported extensions can lead employers to review leave use more closely.
That doesn’t mean you can’t leave the house or enjoy small outings. But if your activity seems out of step with your certification or if you’re claiming total incapacity, it’s better to avoid public posts altogether.
If You Need More Time, Don’t Assume You’re Covered
FMLA gives you 12 weeks of unpaid leave per year (in most cases). Once that time is used up, you lose automatic job protection—unless another law or policy kicks in.
If you expect to need more time:
- Notify your employer in advance
- Ask if you can transition to short-term disability leave
- See if you qualify for accommodation under the ADA
Don’t wait until the end of your FMLA period to speak up. Leaving your employer in the dark can confuse or make reinstatement more difficult.
Returning to Work After FMLA Leave
You have the right to return to your same or equivalent position once your FMLA leave ends. That means:
- Same pay
- Same benefits
- Similar duties and responsibilities
Your employer can request a fitness-for-duty certification if they told you in advance that one would be required. This is common for conditions involving physical tasks or roles in public safety.
They can’t:
- Demote you
- Cut your hours
- Reassign you to a less favorable shift—unless that job is truly equivalent and the change isn’t retaliatory
If Problems Come Up, Don’t Ignore Them
Things can go wrong even after the leave approval:
- The employer might pressurize you to join back soon
- Upon returning, the employer may cut your work hours
- The employer might also debilitate you and keep you away from official meetings and discussions
If any of these things are happening, it may indicate subtle retaliation, which is illegal under the FMLA. You have the right to:
- Speak with HR
- File a complaint with the Department of Labor
- Consult a qualified employment attorney
You don’t have to tolerate being punished for using protected leave.
The Right Steps Make FMLA Work the Way It Should
FMLA leave protects your job, but that protection works best when you understand how to use it properly.
When employees:
- Follow the steps to request leave
- Stay in communication
- Keep their paperwork updated
- Use the time for its stated purpose
For employers, complying with all FMLA norms is paramount. The same applies to employees as well. Please apply for leave, following all applicable protocols. Before applying, have a clear communication with your reporting authority.
Communicate the reason for leave taking. Make a clear stream of written communication as evidence.
If the process is rushed or not well-documented, it may lead to misunderstandings. At the same time, try to be in touch with your office when you are on leave. It helps you or the employer to avoid further confusion.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. If you are experiencing issues related to FMLA leave or workplace retaliation, consider speaking with an employment attorney or contacting the U.S. Department of Labor for guidance.
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