Taking care of yourself and your household is not always about the money you bring home from work. Sometimes you need time off to tend to important personal or family matters. If you need this type of break and want to know whether you can be fired for taking a leave of absence, you should know that, in many cases, you cannot be fired for taking a break. To enjoy the complete protection of state and federal leave laws, you need to comply with specific terms. At Smithey Law Group LLC, our employment attorneys are award-winning counselors who can protect your job while you protect yourself and your family.
What Are My Leave Rights Under State and Federal Laws?
If you need time off of work, there are two laws that offer job-protected (and sometimes paid) leave. You can seek leave under the federal Family and Medical Leave Act (FMLA) or the Maryland Healthy Working Families Act (Sick and Safe Leave law). Each law comes with different rights and obligations that you should discuss with a knowledgeable attorney.
The Family and Medical Leave Act
Under the FMLA, an employee can take up to 12 weeks of unpaid leave in a year for one of the following reasons:
- The birth of a child,
- Addressing a serious health condition,
- Adoption of a child,
- Caring for a family member with a serious health condition,
- Welcoming a foster child,
- Addressing exigencies related to the military deployment of a family member, or
- Bonding with a child within the first year of welcoming them into your home.
Sometimes you can receive 26 weeks of unpaid leave to care for a family member in the military who has a serious health condition.
During leave, an employer must protect the absent employee’s job and maintain their benefits. When the employee’s leave is over, their employer must restore them to the same or similar position with the same benefits.
If you seek FMLA leave, your employer can require you to certify that you qualify for the benefit, and you might have to give at least 30 days’ notice of your intentions to take leave. Only employers with 50 or more employees must comply with the FMLA. And only an employee who has worked for their employer for at least 12 months and has worked at least 1,250 hours for that employer in the last 12 months has access to FMLA protections.
Maryland Healthy Working Families Act
The Maryland Healthy Working Families Act (Sick and Safe Leave law) requires some employers to give their employees up to 64 hours of earned sick and safe leave in a year. Maryland employees who qualify for sick and safe leave can use the time away from work to handle significant personal issues such as:
- Maternity or paternity leave;
- Treating or caring for a health condition;
- Addressing certain personal or family member needs resulting from domestic violence, assault, or stalking; or
- Treating or caring for the health condition of a family member.
If an employer has 15 or more employees, it must provide paid sick and safe leave for certain employees. And if an employer has 14 or fewer employees, it must give unpaid leave to certain employees.
What Can I Do If I Am Fired for a Leave of Absence?
If your employer fires you, terminates your benefits, or mistreats you because you took state Sick and Safe Leave or FMLA leave, that is unlawful retaliation. You can initiate legal action against your employer for their illegal, retaliatory conduct.
If your employer violates the state Sick and Safe Leave law, you can file a complaint with the Maryland Department of Labor. Not every employee is entitled to Sick and Safe Leave, so it is important to speak with an attorney about your options before initiating a complaint. If you don’t have Sick and Safe Leave rights, you might still be able to seek relief under the FMLA.
The Wage and Hour Division of the U.S. Department of Labor investigates and holds employers accountable for violations of the FMLA. You can also sue your employer for FMLA violations. If you win your complaint or lawsuit, you can receive financial compensation, reinstatement of your job, and reinstatement of your benefits. You have two years to start legal action to assert your FMLA rights.
Job Protection Under the State and Federal Leave Laws Is Not Absolute
Not every employee is entitled to protected leave. Several types of employees do not have access to state Sick and Safe Leave, including:
- Employees who work less than 12 hours per week,
- Certain employees in the construction industry, and
- Certain “as-needed” employees in the health or human services industry.
And an employer does not have to reinstate an employee after FMLA leave if that employee is a salaried, “key employee” who is in the top 10% of earners in the employer’s workforce. A key employee is someone whose job restoration would cause “substantial and grievous economic injury” to the employer. Concluding when this key employee exemption applies is challenging, so it is best to speak to an attorney about whether it applies to you.
Additionally, while termination due to a leave of absence that was properly taken is illegal, it is not always illegal for an employer to fire an employee while they are on leave. An employer may terminate an employee on leave if that employee engaged in misconduct or if the employer needed to lay employees off for business reasons and that employee would have lost their job regardless.
Smithey Law Group Can Protect Your Job and Your Rights
Our employment attorneys at Smithey Law Group are effective leaders in the Maryland employment law community. We are sought-after legal educators and advocates, and we can help ensure you receive the proper respect at work and in the courtroom. If you have a dispute with a current or former employer, we can maximize your recovery. Please call us at 410-881-8190 or contact us online for help.