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Can You Be Fired If You Do Not Qualify for FMLA?

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The Family and Medical Leave Act allows many employees to receive 12 weeks off in a 12-month period for reasons ranging from childbirth to serious illnesses and injuries. Under the law, employees who qualify for time off may not lose their jobs for taking the time. Employers, however, may terminate the jobs of employees who miss time but do not qualify for FMLA leave.

Facts

The FMLA provides 12 weeks of unpaid leave per year for employees to use as maternity leave, to deal with serious health conditions that render them unable to work, or health problems that affect an immediate family member. Employees qualify for FMLA leave if they have worked for their employer for at least 12 months, putting in 1,250 or more hours over the 12-month period. They also must work at a site, or within 75 miles of another site owned by their employer, that has at least 50 employees.

Significance

If employees do not qualify for FMLA leave, but take leave anyway, an employer may fire them unless they have contractual protections, such as a collective bargaining agreement. Labor laws do not require employers to retain employees who cannot report to work, even if the reason is legitimate and out of the employee's control. The same issue may arise for employees who qualify for FMLA time and exhaust their 12 weeks, and then are unable to return to work.

Considerations

If employees do not qualify for FMLA leave, they may be able to utilize paid sick leave or vacation time if their employer offers it. But labor laws do not require employers to offer paid or unpaid leave, except for that which the FMLA specifies. In 2009, a U.S. Congressman introduced a bill, the Family Leave Insurance Act, that would have established a paid leave insurance program covering family and medical issues. The bill never made it out of a House subcommittee.

Alternatives

Employees who need time off to give birth and tend to their newborns, but do not qualify for FMLA leave, may have rights under the Pregnancy Discrimination Act. The law requires employers who establish policies for granting leave to temporarily disabled employees to extend those same rights to pregnant women. For employees with serious health conditions, but ineligible for FMLA leave, the Americans with Disabilities Act offers protections if their condition qualifies as a disability.