Home/ Leave (FMLA, PTO & Sick)/ Guide № 10

Can You Terminate an Employee on FMLA Leave?

Yes — but only for reasons that would have applied anyway, and the burden of proving that is yours. The reinstatement right, its limits under 29 CFR 825.216, and the retaliation trap, verified against the regulations.

LegalWorkplace.com Staff Reviewed Aug 2026 · 8 min read · 8 steps

Can You Terminate an Employee on FMLA Leave?

The rule

FMLA leave gives no greater right to reinstatement than continuous employment would have — but no lesser right either.

The burden

To deny restoration, the employer must be able to show the employee would not otherwise have been employed (29 CFR 825.216).

The trap

Interference and retaliation are separate violations (29 CFR 825.220) — timing alone can carry a claim to a jury.

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Not legal advice. Educational guide to general U.S. employment law. Rules vary by state — consult an employment attorney for specific cases.

The short answer

Yes — an employee on FMLA leave can lawfully be terminated, but only for a reason independent of the leave, and the employer carries the burden of proving it. FMLA leave is not a shield against a layoff that would have included the employee anyway, a position elimination, or misconduct discovered on its own. It is an absolute shield against being terminated because of the leave — and the closer the termination sits to the leave request, the more the paperwork has to carry.

“An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” — 29 CFR 825.216(a)

What the reinstatement right covers

An employee returning from FMLA leave is entitled to the same or an equivalent position — substantially similar duties, pay, benefits, shift, worksite, and status. Equivalent means genuinely equivalent: same or geographically proximate worksite, same or equivalent schedule, and the same opportunity for bonuses and profit-sharing. What the right does not cover is anything the employee would have lost anyway: if the worksite closed, the shift was eliminated, or the whole department was restructured, the returning employee stands exactly where continuous employment would have put them — no worse, no better.

When termination during leave is lawful

A genuine layoff

If the employee is laid off during FMLA leave, the duties to continue leave, maintain health benefits, and restore employment cease at the layoff — provided the employer can prove the employee would have been laid off regardless (825.216(a)(1)).

The job was ending anyway

An employee hired for a discrete project or a fixed term has no right to restoration past the point the work would have ended.

Independent misconduct

Fraud on the leave itself, or misconduct discovered through normal channels — documented the way you would document it for anyone not on leave.

Inability to perform on return

If the employee cannot perform an essential function at the end of FMLA leave, FMLA restoration rights end — but the ADA's separate accommodation analysis begins; treat them as two doors, not one.

The burden of proof is yours

The regulation puts it in one sentence: "An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment." In practice that means the layoff selection matrix, the restructuring memo, or the investigation file must exist and must predate — or be provably independent of — the leave. A reason assembled after the leave request reads as pretext, and juries are invited to read it that way.

The retaliation trap

Even a defensible termination can generate a second, separate claim. 29 CFR 825.220 prohibits interfering with FMLA rights, discharging or discriminating against anyone for opposing unlawful practices, and counting FMLA leave against an employee in disciplinary or attendance systems. The classic loss pattern isn't a fabricated reason — it's a real reason applied only to the person who took leave, or a no-fault attendance policy that quietly counted FMLA days. Audit the timing, the comparators, and the attendance math before the meeting, not after the complaint.

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Frequently asked questions

Is an employee on FMLA leave immune from termination?

No. The regulation is explicit: an employee has no greater right to reinstatement or other benefits than if they had been continuously employed. A layoff, position elimination, or misconduct discovered independently can lawfully end employment during leave — if the employer can prove the reason is independent of the leave.

Who has to prove the termination was legitimate?

The employer. Under 29 CFR 825.216(a), an employer must be able to show that the employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration.

Can you include an employee on FMLA leave in a layoff?

Yes, if they would have been laid off regardless. If the employee is laid off during leave, the obligations to continue leave, maintain health benefits and restore the employee cease — but the employer carries the burden of proving the layoff would have happened anyway (29 CFR 825.216(a)(1)).

What is the difference between FMLA interference and retaliation?

Interference is impeding the exercise of FMLA rights; retaliation is punishing someone for using them or opposing violations. Both are prohibited by 29 CFR 825.220, and a termination close in time to a leave request can support a retaliation claim even where a valid reason exists.