Can You Fire an Employee on FMLA? The Definitive Employer Defense Guide (2026)

The Myth of Absolute Immunity: FMLA Does Not Guarantee Job Security

One of the most persistent and costly misconceptions among small business owners and HR managers is that employees on Family and Medical Leave Act (FMLA) leave possess absolute immunity from termination. In reality, the statute is unambiguous: FMLA leave grants job protection, not employment insulation.

Under federal regulations (29 CFR § 825.216(a)), '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.' An employer is legally permitted to discharge an employee on leave if the employer can prove that the worker would have been terminated regardless of whether they exercised their statutory FMLA rights.

The 4 Lawful Grounds for Terminating an Employee on FMLA Leave

1. Pre-Existing Documented Performance Deficiencies: If an employee was placed on a formal, written Performance Improvement Plan (PIP) or had documented written reprimands prior to requesting medical leave, the employer may proceed with separation if pre-established milestones were missed.