within rights of FMLA

can a employer fire you if you took fmla for maternity leave. while on leave you go out of state on vacation. can that get you fired?

1 answer  |  asked Oct 5, 2011 4:55 PM [EST]  |  applies to Texas

Answers (1)

Jill J. Weinberg
There are several missing facts to your question. Did you comply with company policy about exhausting paid time off (ex. vacation pay) during FMLA? An employer in Texas can require an employee to use up such PTO simultaneously with FMLA. If there is such a policy is HR claiming you failed to follow it?
If there is no such policy, then the FMLA allows you to take unpaid FMLA leave to CARE for your child as well as recover from child birth or other related medical issues. Your caring for your child does not prevent you from traveling with your child. On the otherhand, if the child was left behind, the employer may contend you no longer needed FMLA to take care of your child and so you no longer qualified for FMLA leave (although I would not recommend an employer rely on such an argument b/c there is no requirement under FMLA that you must be with a child or other family member 24/7 to qualify for FMLA).
Did you provide a different reason for being on FMLA and the employer is contending that information is false so that is why you were terminated?

Or did the company have a layoff or eliminate your position while you were on leave? Assuming that occurred for legitimate reasons ( and not to retaliate against you for taking FMLA) then your job does not have to be held open.

Assuming no layoff, you did not violate company policies related to FMLA or misrepresent facts to your employer, and your FMLA was to both recover from child birth and care for your child (which is common but adoption is also covered) I do not see how the company can justify lawfully terminating you while on FMLA. The Federal Department of Labor is a good place to start your claim and research.

posted by Jill J. Weinberg  |  Oct 6, 2011 09:41 AM [EST]

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