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Can I be laid off while I’m on FMLA leave?

On Behalf of | Jan 31, 2023 | Family And Medical Leave

Layoffs are back in the headlines and all over our newsfeeds across all of our social media platforms. And, the one thread throughout many of these stories is that many of those laid off were on FMLA leave, like paternity, maternity, medical, mental health, etc., leave. This has led many in Pasadena, California, to wonder whether it is legal to lay someone off while they are on FMLA leave.

What is FMLA leave?

The term FMLA refers to the Family and Medical Leave Act of 1993, which provides employees of eligible employers the ability to take up to 12 weeks of unpaid leave without the risk of losing their jobs. This leave is for specified family and medical reasons, like child birth, newborn care, adoption, newborn adoption care, medical care of an employee’s spouse (child or parent) with a serious health condition or care for themselves with a serious health condition that makes them unable to perform their job.

Does this mean they are exempt from layoff while on FMLA leave?

Unfortunately, for these laid off in Pasadena, California, employees, no. While these employees have their job and benefits protected by their FMLA leave, generally, applicable layoffs are not part of those protections. However, the layoff must be unrelated to the FMLA leave.

FMLA regulation 825.216(a) applies to layoffs that occur during FMLA leave. It states that employees do not gain greater reinstatement rights than if they had continued their employment during their FMLA leave period. In other words, if they would have been laid off had they not been on FMLA leave, they can be laid off when they are on FMLA leave.

The burden is on the employer

FMLA regulation 825.216(a) clearly puts this burden of proof on the employer to prove that the layoff is unrelated to the FMLA leave. This is why most FMLA experts caution employers against laying off those on FMLA leave.

Pasadena, California, employers must be able to document a valid business reason for laying off that employee, separate from the FMLA leave. They must include appropriate documentation to justify such an action. If, prior to the FMLA leave, the employee had a spotless record and glowing performance reviews, it would be hard to justify their layoff separate from the FMLA leave.

Laid off during FMLA leave

If you were laid off during your FMLA leave, and you do not have to take it. Contact your Pasadena, California, attorney, and have your case reviewed. If your employer does not have their documentation, you may have a good case.

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