Our Best Features
Can I be fired while on FMLA? Learn when FMLA protects your job, how to respond to denied leave for surgery, spot intermittent FMLA retaliation, and address disability harassment at work. Get practical steps—documentation tips, return-to-work rights, and when to escalate to HR, the DOL, or employment lawyer to safeguard job protection during medical leave.
Estimated reading time: 12 minutes
Key Takeaways
FMLA provides job-protected leave that generally prevents termination for taking qualifying leave.
Employers may lawfully terminate for legitimate, unrelated reasons (e.g., layoffs or documented performance issues).
Documentation is critical: save requests, certifications, notices, and communications to defend your rights.
Intermittent leave and disability issues can trigger retaliation or harassment—track incidents and escalate as needed.
Use internal remedies first (HR, written requests) and contact the DOL, EEOC, or an employment attorney if violations persist.
Table of Contents
I. Introduction: can I be fired while on FMLA
II. What Is FMLA and Your Rights: job protection during medical leave
III. Can I Be Fired While on FMLA?
IV. Denied Leave for Surgery: denied leave for surgery
V. Job Protection During Medical Leave: job protection during medical leave
VI. Intermittent FMLA Leave and Retaliation: intermittent FMLA retaliation
VII. Disability Harassment at Work Linked to Leave: disability harassment at work
VIII. Practical Tips to Protect Your FMLA Rights: job protection during medical leave
IX. Conclusion: can I be fired while on FMLA
Appendix: Quick Reference Checklists
I. Introduction: can I be fired while on FMLA
One of the most common concerns employees have when taking medical leave is, “Can I be fired while on FMLA?” If you’re facing surgery, dealing with a serious health condition, caring for a family member, or welcoming a child, you need clear answers about job protection during medical leave. Learn more here.
The Family and Medical Leave Act (FMLA) is a federal law that, for eligible employees, provides up to 12 weeks of unpaid, job-protected leave per year for qualifying reasons. That includes your own serious health condition, the birth or adoption of a child, and caring for an immediate family member with a serious health condition. The law also protects your right to return to your job—or a truly equivalent position—after your leave ends.
This guide is value-dense and direct. It explains your FMLA rights, when termination is illegal, and how to respond to real-world issues such as denied leave for surgery, intermittent FMLA retaliation, and disability harassment at work. You’ll find practical steps, documentation tips, and escalation options if your employer violates the law.
In this article, you’ll learn:
What FMLA is and how it protects job security.
When termination during leave may be illegal—and when employers can lawfully proceed.
What to do if you’re denied leave for surgery that should qualify.
How to recognize and respond to intermittent FMLA retaliation.
How to identify and address disability harassment at work tied to your medical leave.
Actionable tips to safeguard your rights and evidence.
Keywords used in this section: can I be fired while on FMLA, job protection during medical leave, denied leave for surgery, intermittent FMLA retaliation, disability harassment at work
II. What Is FMLA and Your Rights: job protection during medical leave
FMLA is a federal law that gives eligible employees unpaid, job-protected leave for certain family and medical needs. It’s designed to let you manage real-life health and caregiving situations without losing your employment.
Core entitlements under FMLA
Up to 12 weeks of unpaid, job-protected leave in a 12-month period for a qualifying reason.
Continuation of group health insurance on the same terms as if you were working.
Reinstatement to the same job—or an equivalent position with the same pay, benefits, and working conditions—when you return.
Basic eligibility criteria
Your employer has at least 50 employees within 75 miles of your worksite.
You have worked for the employer for at least 12 months (not necessarily consecutively).
You have worked at least 1,250 hours in the 12 months before your leave starts.
Qualifying reasons for FMLA leave
Your own serious health condition (including conditions that require inpatient care, continuing treatment, or cause incapacity).
Caring for a spouse, child, or parent with a serious health condition.
Birth and bonding with a newborn.
Placement of a child for adoption or foster care and bonding.
Certain military family leave entitlements.
What job protection during medical leave means in practice
You must be restored to your same position or an equivalent job with identical pay, shift, benefits, and status.
An “equivalent” role is not a demotion, pay cut, or materially worse schedule or duties.
FMLA is job-protected leave. It is unlawful for an employer to interfere with your rights or retaliate against you for using them.
Key clarification on termination
You cannot be fired because you took protected FMLA leave.
Employers must assess your FMLA-related absences separately from typical attendance issues and cannot count protected leave as “points” under no-fault attendance policies.
How this ties back to the central question—can I be fired while on FMLA?
The law prohibits adverse action tied to your leave. If performance issues or a layoff are used to justify termination, the employer must show those reasons are unrelated to your FMLA use and would have happened anyway.
Keywords used in this section: job protection during medical leave, can I be fired while on FMLA
III. Can I Be Fired While on FMLA?
Short answer: You cannot be lawfully fired because you use FMLA leave. The law specifically bans interference with your rights and retaliation for taking protected leave.
However, there are narrow exceptions. An employer can proceed with a termination if the reason is unrelated to FMLA. They carry the burden to prove the action would have happened regardless of your leave.
Lawful reasons an employer might still terminate during FMLA
Company-wide layoff or reduction in force (RIF) that affects your position as part of a broader restructuring.
Elimination of your role based on a pre-existing organizational change not connected to your leave.
Documented poor performance or misconduct that was identified before you requested FMLA and would have led to termination in any case.
Violations that occur during leave (e.g., fraudulently obtaining FMLA or working another job in violation of policy) if the employer applies rules consistently.
Unlawful reasons connected to FMLA use
Counting FMLA-protected absences under attendance policies.
Using your leave as a negative factor in performance reviews, promotion decisions, or termination decisions.
Demoting you, reducing hours, or giving materially worse assignments because you took leave.
Pressuring you to return early or discouraging you from using leave you are entitled to take.
What employers must do to avoid FMLA retaliation
Apply company policies consistently to employees on leave and those not on leave.
Separate FMLA-protected time from ordinary attendance metrics.
Document legitimate reasons for any adverse action that are unrelated to your leave.
Your protection strategy if you fear termination
Document everything: emails, meeting notes, performance reviews, and any changes to duties or schedule before and after your leave.
Keep copies of your FMLA request, medical certification, and employer notices.
If your job is eliminated or you’re disciplined, ask for a written explanation. Compare it with prior reviews and any restructuring notices.
If you’re terminated or threatened with termination around the time of your leave, consult HR and consider contacting the Department of Labor (DOL) or an employment lawyer. Learn more here.
Keywords used in this section: can I be fired while on FMLA, job protection during medical leave, intermittent FMLA retaliation
IV. Denied Leave for Surgery: denied leave for surgery
FMLA covers many surgeries that meet the “serious health condition” standard. That includes inpatient procedures and surgeries requiring ongoing treatment or causing incapacity. If you meet eligibility requirements, you have the right to FMLA leave for qualifying surgery.
Why leave for surgery gets denied
Incomplete or vague medical certification from your healthcare provider.
Delays in returning forms within the employer’s deadline.
Employer disputes that your condition or procedure qualifies under FMLA.
Lack of clarity about your expected incapacity, treatment plan, or follow-up care.
Misunderstanding about eligibility (for example, not meeting the 12 months/1,250 hours threshold).
How to fix a denial tied to medical certification
Ask your provider to complete the certification in full and be specific about diagnosis, treatment plan, the need for leave, expected duration, and any follow-up or recovery period.
Respond promptly to any written request from HR for clarification or authentication.
If your employer requests a second opinion under FMLA rules, cooperate—this is permitted when the employer doubts the certification.
Step-by-step if your surgery leave is denied
Verify eligibility: confirm your work hours and months of service meet the thresholds.
Provide complete medical certification: ensure all fields are filled and dates line up with your procedure and recovery.
Put it in writing: clearly request FMLA leave for your surgery; include dates, duration, and the reason (serious health condition).
Keep records: save emails, letters, certified mail receipts, and copies of forms.
Ask for the specific reason for denial in writing and a copy of the employer’s FMLA policy.
If you meet the criteria and the employer still denies your leave, file a complaint with the DOL or consult a lawyer experienced in FMLA disputes.
Useful additions to support your request
Supply the surgical scheduler’s notice and pre-op/post-op orders.
Provide your doctor’s estimate for time off, potential intermittent follow-up appointments, and any restrictions for return to work.
If you need accommodations beyond leave, see our guide on ADA reasonable accommodations: ADA reasonable accommodations guide
Keywords used in this section: denied leave for surgery, can I be fired while on FMLA, job protection during medical leave
V. Job Protection During Medical Leave: job protection during medical leave
“Job protection during medical leave” means your employment status and core job terms are preserved. When your approved FMLA leave ends, you must be returned to the same job or a truly equivalent role.
What “equivalent position” actually means
Same base pay and the same opportunity for overtime or bonuses if they are tied to the position.
Same benefits: health insurance, retirement, life insurance, disability insurance, and other plans you had before leave.
Same shift, schedule, location, and substantially similar duties and responsibilities.
Same status: if you were a supervisor, your restored role should preserve your rank and authority.
Benefit continuity while you are on FMLA
Group health coverage must continue on the same terms as if you had not taken leave.
You must keep paying your share of premiums. Employers should tell you how to pay while on unpaid leave.
If your employer changes benefits for all employees, those changes can apply to you too, but not because you took leave.
Seniority, service time, and accruals
FMLA does not break service for vesting. Your prior service counts as continuous.
Employers are not required to accrue additional benefits (like paid time off) during unpaid leave unless they do so for all similar types of leave.
Upon return, you should not lose benefits you earned before leave.
Return-to-work rules
An employer may require a fitness-for-duty certification for the specific health condition that prompted your leave. They must:
Notify you in writing of the requirement before your leave begins.
Apply the rule uniformly to all employees in similar positions with similar medical absences.
If restrictions remain, talk to HR about a temporary light-duty plan or a reduced schedule through intermittent FMLA if needed.
Red flags after your return
Lower pay, worse shift, or a different location that increases your commute time without justification.
Removal of duties that affects your status or advancement.
Negative performance review that focuses on the mere fact that you took leave.
Keywords used in this section: job protection during medical leave, can I be fired while on FMLA
VI. Intermittent FMLA Leave and Retaliation: intermittent FMLA retaliation
Intermittent FMLA allows you to take leave in separate blocks of time or work a reduced schedule when medically necessary for a single qualifying condition. This is common for chronic conditions (like migraines, diabetes, anxiety/depression, or asthma), episodic flare-ups, physical therapy, chemotherapy, and follow-up appointments.
How intermittent leave works
Your healthcare provider certifies the need for intermittent leave, including frequency, duration, and medical necessity.
You work with HR to schedule leave as practicable, especially for planned treatments.
You must follow your employer’s usual call-out procedures unless your condition makes that impossible.
Common friction points
Scheduling impacts on teams and coverage.
Requests for recertification if your usage exceeds medical estimates or if circumstances change.
Increased scrutiny, skepticism, or monitoring from supervisors.
What qualifies as intermittent FMLA retaliation
Attendance points or write-ups for FMLA-protected absences.
Demotion, schedule cuts, transfer to undesirable shifts, or task reassignments because of intermittent leave.
Lower performance ratings that cite your leave usage as a negative factor.
Pressure to reschedule necessary treatment times without a legitimate business reason.
Threats, intimidation, or harassment about your “unreliability” due to intermittent absences.
How to protect yourself if retaliation occurs
Keep a leave log: date, time, reason (FMLA), and any communications with supervisors.
Save all emails and write down verbal comments that connect discipline to your FMLA usage.
Ask HR to audit attendance points to remove FMLA-protected time.
If retaliation continues, file a complaint with the DOL or consult an employment attorney. Remedies can include reinstatement, back pay, and other damages.
Best practices to minimize conflict
Give as much advance notice as you can for foreseeable appointments.
Offer solutions for coverage when possible and keep managers informed.
Ask for clarity in writing on call-in procedures during intermittent absences.
Provide recertifications promptly if requested per policy.
Keywords used in this section: intermittent FMLA retaliation, can I be fired while on FMLA, job protection during medical leave
VII. Disability Harassment at Work Linked to Leave: disability harassment at work
Disability harassment at work occurs when you face unwanted comments, different treatment, or hostile behavior because of a disability or medical condition. When it overlaps with medical leave, the conduct can violate both the FMLA (interference/retaliation) and the Americans with Disabilities Act (ADA). Learn more here
What disability harassment can look like
Mocking remarks about your condition, treatment, or need for time off.
Threats of discipline because you have medical restrictions, attend therapy, or take intermittent leave.
Excluding you from meetings, training, or projects after you disclose your condition.
Holding you to different standards or applying policies more harshly than to others.
How it intersects with FMLA rights
Harassment or hostility aimed at your FMLA use can be evidence of interference or retaliation.
Denial of opportunities or punishment for taking protected leave undermines your right to job-protected leave.
If you have ongoing limitations after leave, you may also have rights under the ADA to reasonable accommodations (separate from FMLA), such as modified schedules or light duty.
Employer responsibilities
Prevent disability harassment by training managers and enforcing anti-harassment policies.
Investigate complaints promptly and take corrective action.
Avoid using FMLA leave as a negative factor in any employment decision.
What you should do if harassment occurs
Document incidents with dates, quotes, witnesses, and impact.
Report to your supervisor and HR in writing. Ask for a written response and a timeline for action.
If harassment continues or your employer does not address it, file a charge with the Equal Employment Opportunity Commission (EEOC), contact the DOL regarding FMLA interference/retaliation, or speak with a lawyer.
Keywords used in this section: disability harassment at work, can I be fired while on FMLA, job protection during medical leave
VIII. Practical Tips to Protect Your FMLA Rights: job protection during medical leave
When you understand the process and keep clean records, you strengthen job protection during medical leave. These practical steps reduce risk, especially around denied leave for surgery, intermittent FMLA retaliation, and disability harassment at work.
Build a paper trail
Keep copies of everything: leave requests, medical certifications, employer notices, emails, texts, and policy documents.
Use a simple log to track each absence: date, time, reason, whom you notified, and how (email/phone/portal).
Save confirmation numbers or screenshots from HR systems.
Make clear, timely requests in writing
For foreseeable leave (like surgery), give 30 days’ notice when possible.
Title your email clearly: “FMLA Leave Request – [Your Name] – [Dates/Reason].”
Restate that your leave is for a serious health condition or for caring for a family member with a serious health condition.
If you need intermittent leave, specify the expected frequency and duration from your provider’s certification.
Confirm eligibility and coverage
Ask HR to confirm your eligibility (12 months, 1,250 hours, 50 employees within 75 miles).
Request a copy of the company’s FMLA policy and any call-in procedures for absences.
Clarify whether you must use accrued paid time off concurrently with FMLA (many employers require this).
Respond to certification and recertification needs
Provide complete medical certification by the deadline.
If HR requests clarification or a second opinion, comply promptly.
If your condition changes, ask your doctor to update the certification.
Spot and address issues early
Denied leave for surgery: immediately request the denial in writing and ask which requirement is missing—eligibility, certification, or qualification of the condition.
Intermittent FMLA retaliation: request removal of attendance points and ask that adverse comments or write-ups referencing protected leave be retracted.
Disability harassment at work: report harassment in writing with dates and examples. Ask for a plan to stop it. Learn more here
Know when to escalate
If your employer ignores the law or stalls your leave, contact the DOL for help.
Consider consulting an employment attorney, especially if you face termination, demotion, or ongoing harassment.
Keep pursuing internal remedies, but set deadlines for responses so you can take timely external action if needed.
Sample language you can adapt
“I am requesting FMLA leave for my own serious health condition. My surgery is scheduled for [date], with an anticipated recovery through [date]. My medical certification is attached. Please confirm eligibility and the next steps.”
“This write-up includes FMLA-protected time on [dates]. Please remove these attendance points and confirm in writing.”
“I am experiencing disability-related harassment related to my medical leave. On [date], [name] stated [quote]. I request a prompt investigation and assurance against retaliation.”
Keywords used in this section: job protection during medical leave, can I be fired while on FMLA, denied leave for surgery, intermittent FMLA retaliation, disability harassment at work
IX. Conclusion: can I be fired while on FMLA
FMLA gives eligible employees strong protections. In most situations, the answer to “Can I be fired while on FMLA?” is no—you cannot be lawfully fired because you took protected leave. The law guarantees job protection during medical leave, continuation of health benefits, and the right to return to the same or an equivalent position.
Key takeaways
Know your eligibility and the qualifying reasons for leave.
Use detailed, timely medical certification to prevent denied leave for surgery and other procedures.
Watch for intermittent FMLA retaliation—discipline, demotion, or negative reviews tied to protected absences are illegal.
Address disability harassment at work quickly and document everything.
Escalate to HR, the DOL, or legal counsel if your rights are ignored.
If you are facing termination, denial, or harassment related to FMLA, you don’t have to navigate it alone. Get a free and instant case evaluation by US Employment Lawyers. See if your case qualifies within 30 seconds at US Employment Lawyers.
Keywords used in this section: can I be fired while on FMLA, job protection during medical leave, denied leave for surgery, intermittent FMLA retaliation, disability harassment at work
Appendix: Quick Reference Checklists
This appendix provides fast, actionable checklists you can copy into your own notes.
Checklist: Prepare a strong FMLA request
Confirm eligibility: 12 months employment, 1,250 hours worked, 50 employees within 75 miles.
Identify qualifying reason: serious health condition, family care, birth/adoption.
Give notice: 30 days for foreseeable leave; as soon as practicable for unforeseen needs.
Submit medical certification: ensure it is complete, specific, and consistent with your leave dates.
Ask for written confirmation: eligibility, designation notice, and any fitness-for-duty requirement.
Checklist: Protect job protection during medical leave
Save all employer notices and your communications.
Track benefits and premium payments; ask for payment instructions while on leave.
Confirm return-to-work expectations, including any fitness-for-duty requirement.
On return, check for equivalency: pay, benefits, shift, status, and duties.
If something changed, request a written explanation and compare to policy.
Checklist: Respond to denied leave for surgery
Request the denial reasoning in writing.
Correct certification issues with your doctor.
Re-submit with clear dates and recovery plan.
If eligibility is met and denial stands, contact the DOL or an employment attorney.
Checklist: Spot intermittent FMLA retaliation
Are attendance points tied to protected absences?
Has your schedule, pay, or duties been cut after using intermittent leave?
Did your performance review cite your leave negatively?
Are managers pressuring you to avoid treatment or return early?
Document and escalate to HR or external agencies if needed.
Checklist: Address disability harassment at work
Log dates, statements, witnesses, and impacts.
Report in writing to HR and your manager.
Request an investigation and anti-retaliation assurances.
If unresolved, file with the EEOC or contact a lawyer.
This article is designed to help you act quickly and effectively. When in doubt, ask HR to provide the relevant FMLA forms and policies, and consult reliable sources—then protect your rights with solid documentation and timely escalation.
FAQ
Can my employer fire me while I am on FMLA leave?
Generally, no. FMLA prohibits firing you because you took protected leave. Employers can only terminate you for legitimate, non-FMLA-related reasons (like a company-wide layoff or documented performance issues that would have led to termination regardless of leave).
What should I do if my leave for surgery is denied?
Verify eligibility, correct any incomplete medical certification with your healthcare provider, submit the completed documentation promptly, request the denial reason in writing, and if necessary file a complaint with the DOL or consult an employment attorney.
How can I prove intermittent FMLA retaliation?
Keep a detailed log of absences, save emails and written communications, document any disciplinary actions tied to protected absences, and request HR to remove attendance points that were applied to FMLA-protected time. If retaliation continues, escalate to the DOL or an attorney.
Is harassment related to my medical leave illegal?
Harassment tied to your FMLA use can be evidence of interference or retaliation under the FMLA and may also violate the ADA if related to a disability. Document incidents, report them in writing to HR, and consider filing with the EEOC or seeking legal counsel if unresolved.
Where can I get more information or help?
For resources, visit the U.S. Department of Labor’s FMLA page and related employer guidance, consult the FMLA PDF resources, or contact an employment attorney. If you need a case evaluation, you can visit US Employment Lawyers.
