Can I be fired for a family medical absence if my employer has a no-fault absence policy?
UPDATED: August 10, 2012
It’s all about you. We want to help you make the right legal decisions.
We strive to help you make confident law decisions. Finding trusted and reliable legal advice should be easy. This doesn't influence our content. Our opinions are our own.
Under the Family Medical Leave Act (FMLA), you are protected from being terminated due to FMLA absences related to your medical condition. An employer who is choosing to fire you for your FMLA absences is, essentially, breaking the law, even if the employer has a no-fault policy in place. In fact, the no-fault attendance policy itself could be considered illegal in situations like this where it is applied to employees on FMLA-approved leave or any other staff who is legally protected from such firings.
It is possible to lose your job under FMLA, but only in situations where the job loss would have taken place anyway. Your employer will be required to prove that your termination was not, in fact, related to your FMLA-protected absences, and in a situation where you are specifically being told you're being fired for no-fault absence violation, that's obviously not the case. The FMLA also only provides you with up to 12 weeks of unpaid leave. If you miss more than the time allotted to you by the FMLA, you can be terminated for additional absences. However, the termination must really be as a result of those additional absences and not in retaliation for you taking your protected leave.
It is also important to note that you may need to provide specific information to your employer if you are taking FMLA leave in order to be protected. Make sure you get FMLA documentation from your doctor and submit it to your employer immediately; otherwise, your employer could later say that they did not know your leave was protected. This is especially true if you have many absences, with some FMLA-protected and some not.
To ensure your rights are protected, make sure to document everything and speak to a lawyer if you need assistance. If your employer is clearly informed of your absences being protected by FMLA and they proceed with the firing anyway, you may have the right to sue.