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Litigation & Employment

Can An Employee Be Terminated While on Medical Leave?

09/02/2021
By: Lauren Haskins

By Lauren Haskins

The short answer is it depends. Employees cannot be terminated for the act of taking medical leave or having a condition that requires medical leave, but there are other reasons employers may terminate your employment.

Can any employee take medical leave?

Again, it depends. Depending on the size of the company and the medical condition, employees are entitled to take leave under several federal and state laws. Under some laws, once the employee’s leave is over, the employee has the right to be reinstated to his or her position.

What types of leave are Massachusetts employees entitled to?[1]

  • Family Medical Leave Act (FMLA)[2] is a federal law guaranteeing covered workers up to 12 weeks of unpaid leave to care for newborns, newly adopted children and seriously ill family members, or to recover from their own serious illnesses.
  • Massachusetts Paid Family and Medical Leave (PFML) is a state law allowing covered workers up to 26 weeks of paid leave per year. Employees can take leave for their own serious health condition, for the worker to bond with a child after the child’s birth, adoption or foster care placement, to address needs arising out a family member’s active duty or impending call to active duty in the armed forces or to care for a family member with a serious health condition.
  • Massachusetts Parental Leave Act (MPLA)[3] is a state law which allows covered workers to take up to 8 weeks following the birth or adoption of a child.
  • Small Necessities Leave Act (SNLA) allows workers to take up to 24 hours per year off from work to go to their child’s education-related school activities, or to accompany a child or elderly relative to medical or dental appointments.

What can employees be terminated for?

In Massachusetts, the default employment relationship is referred to as “at will.” This means that an employer can terminate an employee for virtually any reason so long as it is not prohibited by public policy. If an employee takes medical leave using the laws listed above, their employment is protected by public policy, but these protections are not absolute.

What other laws provide protection for employees on medical leave?

  • Americans with Disabilities Act (ADA)[4] The ADA requires employers to provide reasonable accommodations for employees with disabilities. There are circumstances in which unpaid leave for a short period can be a reasonable accommodation.
  • Massachusetts Antidiscrimination Law M.G.L. c. 151B[5] 151B is the state equivalent to the ADA but covers additional private employers and covers certain medical conditions not covered by the ADA.
  • Pregnancy Discrimination Act (PDA) Prohibits discrimination against pregnant women.

Employees taking medical leave should be mindful that you can be terminated if you abuse your FMLA leave such as going on a vacation that is inconsistent with your claimed reason for medical leave. See c.f. DaPrato v. MWRA, 482 Mass. 375 (2019) (While upholding the judgment for the employee, the Court clarified that “an employer may validly consider an employee’s conduct on vacation — or, for that matter, anywhere — that is inconsistent with his or her claimed reasons for medical leave when the employer has such information at the time the employer is evaluating whether leave has been properly or improperly used.”) But remember, the employer may not treat the mere fact that an employee went on vacation while on FMLA leave, standing on its own, as grounds for an adverse employment action. See also Esler v. Sylvia-Reardon, 473 Mass. 775, 781 (2016).

Employees can also be terminated if, for example,

  • while on FMLA leave, they are absent from work beyond the 12 week period, even if it is for one day.
  • the employee is unable to perform the essential functions of their job after reasonable accommodations have been made.
  • an employer has a legitimate business reason to reduce and/or reorganize its staff as long as the reorganization is not masking discriminatory intent. Hodgens v. General Dynamics Corp., 144 F.3d 151, 166 (1998).

To note, these are not the only circumstances in which employment can be terminated while on medical leave. Navigating medical leave can be complicated for employees and employers. To better understand your protections and limitations under the various medical leave laws, contact Gesmer Updegrove.

[1] Eligibility of coverage under the different laws varies based on a number of factors including but not limited to the size of the employer and types of medical conditions.

[2] Massachusetts employers are subject to the FMLA if they have at least 50 employees.

[3] Massachusetts employers are subject to the MPLA if they have at least 6 more employees.

[4] Employers are subject to the ADA if they have at least 15 employees.

[5] Employers are subject to MGL c. 151B with at least 6 or more employees.

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