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Can I be fired while on FMLA leave?

Depends on facts Reviewed September 1, 2026
It depends on the reason. You cannot be fired because you took FMLA leave — but the leave doesn't shield you from a termination that would have happened anyway, like a layoff that includes your position. Critically, the employer carries the burden: to deny your reinstatement, it must be able to show you would not otherwise have been employed (29 CFR 825.216).

FMLA gives you the right to return to the same or an equivalent job — same pay, benefits, shift, and status. What it doesn't give you is more protection than working would have: if your whole department was eliminated, or a layoff selected you on neutral criteria set before your leave, the termination can be lawful even mid-leave.

The burden is the employer's. The regulation says an employer "must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested" to deny restoration. A reason assembled after your leave request, or applied only to you, reads as pretext.

Retaliation is a separate violation. Under 29 CFR 825.220, an employer can't count FMLA days against you in attendance or discipline systems, and can't punish you for requesting or using leave. A termination close in time to a leave request — or an attendance policy that quietly counted FMLA absences — supports a claim even where some valid reason exists.

What to do: keep copies of your leave request, approval, and any performance reviews from before the leave; note the timeline; and raise the issue with the DOL Wage and Hour Division or an employment attorney.

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Related questions

Can a layoff include someone on FMLA leave?
Yes — if the employee would have been laid off regardless of the leave, and the employer can prove it with selection criteria that predate or are independent of the leave (29 CFR 825.216(a)(1)).
What if I can't return to work when my FMLA leave ends?
FMLA restoration rights end after the 12 weeks, but the ADA's separate reasonable-accommodation analysis — including possible additional unpaid leave — may still apply. The two laws run on different tracks.
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Educational content, not legal advice. For a live dispute, consult a licensed employment attorney in your state.