Can You Discipline or Fire an Employee on FMLA Leave?

What does the FMLA protect while an employee is on leave?

The FMLA protects two things: the right to take leave, and the right on return “to be restored by the employer to the position of employment held by the employee when the leave commenced,” or to an equivalent one. An employer may not act to “interfere with, restrain, or deny” either right.

The restoration right is in 29 U.S.C. § 2614(a)(1), and it holds “even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.” 29 C.F.R. § 825.214. The right has two limits. A restored employee gets no right or position other than what he or she would have had “had the employee not taken the leave,” covered in the next section. And under 29 U.S.C. § 2614(b), an employer may deny restoration to “a salaried eligible employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed” when the denial “is necessary to prevent substantial and grievous economic injury to the operations of the employer” and the subsection’s notice and other conditions are met. The prohibitions are in 29 U.S.C. § 2615(a): interfering with FMLA rights, and discharging or discriminating against anyone “for opposing any practice made unlawful by this subchapter.”

The Eighth Circuit sorts the claims an employee can bring into three types in Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012). An “entitlement” claim says the employer denied a benefit the FMLA guarantees, such as leave or reinstatement. A “retaliation” claim says the employer punished the employee for opposing an FMLA violation. A “discrimination” claim says the employer acted against the employee because he or she used FMLA rights. A discipline decision during leave can draw an entitlement claim and a discrimination claim, and a retaliation claim too if the employee had complained about an FMLA violation.

The FMLA reaches an employer “who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year,” and an employee becomes eligible only after 12 months of employment and “at least 1,250 hours of service with such employer during the previous 12-month period.” The definition also excludes an employee at a worksite with fewer than 50 employees “if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.” 29 U.S.C. § 2611. Coverage basics are on my page on FMLA compliance for Minnesota employers.

When can an employer lawfully discipline or fire an employee on FMLA leave?

An employer can discipline or fire an employee on FMLA leave when it can prove it would have made the same decision had the employee not taken leave. The FMLA gives a returning employee no “right, benefit, or position of employment” beyond what he or she would have had without the leave, and the employer carries the burden of proof.

That limit is written into 29 U.S.C. § 2614(a)(3)(B), which denies a restored employee “any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.” The regulation states it from the employer’s side: “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 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.” 29 C.F.R. § 825.216(a).

The Eighth Circuit adopted this rule in Throneberry v. McGehee Desha County Hospital, 403 F.3d 972 (8th Cir. 2005), holding that the FMLA does not impose strict liability for every interference. A jury found that a hospital interfered with a nurse’s leave, then found the hospital proved it would have discharged her regardless, and the court affirmed judgment for the hospital. The court reasoned that “if an employer were authorized to discharge an employee if the employee were not on FMLA leave, the FMLA does not shield an employee on FMLA leave from the same, lawful discharge.”

The court restated the rule in Estrada v. Cypress Semiconductor (Minnesota) Inc., 616 F.3d 866 (8th Cir. 2010): “An employee who requests FMLA leave has no greater protection against termination for reasons unrelated to the FMLA than she did before taking the leave.” The defense covers only reasons unrelated to the leave. It protects a decision the employer would have made anyway, and not a decision the leave helped cause.

How do attendance points and no-fault policies treat FMLA absences?

FMLA-protected absences cannot count against an employee under an attendance-point or no-fault policy, and Minnesota applies the same bar to earned sick and safe time. Absences that no federal or Minnesota leave law protects still count, and an employer can discipline for them if it enforces the policy the same way for everyone.

The federal rule is in 29 C.F.R. § 825.220(c): “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies.” Minnesota’s version for sick time is in Minn. Stat. § 181.9447, subd. 6(b): “It shall be unlawful for an employer’s absence control policy or attendance point system to count earned sick and safe time taken under sections 181.9445 to 181.9448 as an absence that may lead to or result in retaliation or any other adverse action.” That law reaches an employer with “one or more employees.” Minn. Stat. § 181.9445, subd. 6. More on that law is on my page on earned sick and safe time compliance.

Estrada shows how the line works. A semiconductor maker in Minnesota fired a production technician under a points policy. She argued that one absence, the Sunday after outpatient surgery, was FMLA-protected and should not have counted. The Eighth Circuit assumed it was protected and still affirmed summary judgment for the employer, because her other absences put her over the policy’s five-point termination line on their own. Among the facts the court relied on, the signed warning form cited the five-point rule, which it called “strong evidence that Cypress took this aspect of its policy seriously in practice,” and the manager’s testimony “that Cypress actually and habitually enforces that policy.”

One more rule affects the count. When an employee never returns a requested medical certification, “the leave is not FMLA leave.” 29 C.F.R. § 825.313(b). Minnesota law can still protect that day. Minnesota Paid Leave’s protected leave includes any day for which “the employee has applied for benefits in good faith under this chapter,” Minn. Stat. § 268B.09, subd. 1(b)(2). The sick time law also bars an attendance point system from counting “earned sick and safe time taken under sections 181.9445 to 181.9448,” Minn. Stat. § 181.9447, subd. 6(b). I suggest reviewing every point against the FMLA designation record before a final warning issues, because one protected absence in the count can push an employee over a termination line. The employer then has to prove the other absences alone would have led to the same decision, as Cypress did in Estrada. For drafting the policy itself, see my attendance policy template.

What call-in and reporting rules can an employer enforce during leave?

An employer may require an employee on FMLA leave to follow its usual call-in and notice procedures, absent unusual circumstances, and may require periodic reports on the employee’s status and intent to return. The Eighth Circuit has upheld a firing for breaking a call-in rule during leave.

The regulations allow an employer to “require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. § 825.302(d). For unforeseeable leave, “If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.” 29 C.F.R. § 825.303(c). The same regulation sets a limit. An employee needing emergency treatment need not follow the call-in procedure “until his or her condition is stabilized and he or she has access to, and is able to use, a phone.” A stricter company deadline also cannot delay or deny leave when the employee gave notice as early as the FMLA requires. 29 C.F.R. § 825.302(d). When the absence is earned sick and safe time, an employer that requires notice “shall have a written policy containing reasonable procedures for employees to provide notice of the need to use earned sick and safe time, and shall provide a written copy of such policy to employees,” and “If a copy of the written policy has not been provided to an employee, an employer shall not deny the use of earned sick and safe time to the employee on that basis.” Minn. Stat. § 181.9447, subd. 2.

Status reports are allowed by statute. 29 U.S.C. § 2614(a)(5) permits an employer to require an employee on leave “to report periodically to the employer on the status and intention of the employee to return to work.” The regulation adds that the policy “may not be discriminatory and must take into account all of the relevant facts and circumstances related to the individual employee’s leave situation.” 29 C.F.R. § 825.311(a).

In Bacon v. Hennepin County Medical Center, 550 F.3d 711 (8th Cir. 2008), a Hennepin County hospital required an employee on indefinite leave to call in each day unless she had given a tentative return date. She called in for about a month, then stopped, and under the union contract three days without notice counted as a voluntary termination. “Employers who enforce such policies by firing employees on FMLA leave for noncompliance do not violate the FMLA,” the Eighth Circuit held. The hospital’s leave request form had the employee acknowledge that the county’s human resources rules “(or applicable labor agreement) apply to my absences,” so the hospital had made the rule explicit. The court also noted that the employee did not argue the hospital enforced the rule more harshly against her than against employees not on FMLA leave. For intermittent absences, my page on documenting intermittent FMLA leave covers the paperwork.

What misconduct during FMLA leave can still lead to discipline?

Misconduct that would get an employee disciplined at work can still be disciplined during FMLA leave. Fraudulently obtained leave loses its job protection, a uniformly applied outside-employment policy keeps applying, and conduct during leave can support a discharge the employer would have made anyway.

On fraud, “An employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions.” 29 C.F.R. § 825.216(d). On second jobs, “If the employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained as in paragraph (d) of this section.” 29 C.F.R. § 825.216(e).

In Throneberry, the nurse came to the workplace while on leave and disrupted her coworkers, after a year in which, the administrator told her, her work performance had declined. The court used a harassment example to explain the rule: “if the employer would have discharged the employee for harassing a supervisor or co-worker if the employee were not on FMLA leave, then the employer would be justified in discharging the employee for harassment while the employee was on FMLA leave.”

I suggest investigating suspected misconduct before acting and basing the decision on what the investigation finds, because courts ask whether the employer truly believed the reason it gave. In Pulczinski, an Iowa employer fired a lead painter after coworkers reported he had planned to skip a Saturday shift, which he said he missed to care for his son. Coworkers also reported that he had discouraged others from volunteering for overtime. On his disability claim, the Eighth Circuit applied what it called the honest belief rule: “It is not our province to determine whether the employer’s investigation of alleged employee misconduct reached the correct result, so long as it truly was the reason for the plaintiffs termination.” It affirmed dismissal of the FMLA termination claim “for substantially the same reasons.” The company’s investigation drew on statements from more than one coworker.

How do courts decide whether discipline was retaliation for FMLA leave?

In the Eighth Circuit, an employee who claims discipline because he or she used FMLA rights brings a discrimination claim and must prove the employer was motivated by the employee’s exercise of those rights. An entitlement claim needs no proof of intent. The regulations bar using leave as a “negative factor” in discipline, and courts measure suspicious timing from when the employer learned of the leave. Some Eighth Circuit opinions, including Lissick below, call this claim retaliation.

Pulczinski states the burden for a discrimination claim. “An employee making this type of claim must prove that the employer was motivated by the employee’s exercise of rights under the FMLA,” the court wrote. For an entitlement claim, “An employee proceeding on this theory need not show that an employer acted with discriminatory intent,” the court said. In the same case, the court held on the disability claim, and then applied to the FMLA termination claim, that proof the employer was wrong about the misconduct shows only that its belief was mistaken. To prove the stated reason false, the employee must show the employer did not truly believe it.

The “negative factor” standard comes from 29 C.F.R. § 825.220(c), and the Eighth Circuit applies it. In Lissick v. Andersen Corp., 996 F.3d 876 (8th Cir. 2021), the court, quoting an earlier Eighth Circuit decision, said “[A]n employer may not consider ‘an employee’s use of FMLA leave as a negative factor in an employment action.’” Discouraging leave counts too: interference includes “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b).

Courts weigh the timing of the discipline against the timing of the leave. Lissick, an appeal from the District of Minnesota, involved a window and door manufacturer that fired a maintenance employee after a third lock-out, tag-out safety violation, while he still had intermittent leave approved. On his FMLA claim, which the court treated as retaliation for taking leave, he argued the timing was “instantaneous.” The court disagreed, again quoting earlier precedent: “this [C]ourt looks to the date an employer knew of an employee’s use (or planned use) of FMLA leave, not the date [that leave] ended.” He had requested leave about nine months earlier, and without other evidence the timing did not show a causal link.

What happens when an employee cannot return when FMLA leave ends?

When an employee’s FMLA entitlement runs out and he or she still cannot perform an essential function of the job, the FMLA gives no right to restoration to another position. Disability and pregnancy laws may still require the employer to engage in an interactive process with the employee and consider more leave or another accommodation before ending employment.

The FMLA provides “a total of 12 workweeks of leave during any 12-month period” for qualifying reasons. 29 U.S.C. § 2612(a)(1). The regulation then says: “If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition or an injury or illness also covered by workers’ compensation, the employee has no right to restoration to another position under the FMLA. The employer’s obligations may, however, be governed by the Americans with Disabilities Act (ADA), as amended.” 29 C.F.R. § 825.216(c). An employer may require a fitness-for-duty certification under a uniformly applied policy, after giving the required notice. An employee who then provides neither that certification nor a new medical certification when leave ends “may be terminated.” 29 C.F.R. § 825.313(d).

Minnesota’s disability accommodation duty applies to employers with 15 or more employees. Minn. Stat. § 363A.08, subd. 6 makes it unlawful for such an employer “not to provide a reasonable accommodation for a job applicant or qualified employee with a disability unless the employer, agency, or organization can demonstrate that the accommodation would impose an undue hardship,” and lists “job restructuring, modified work schedules, reassignment to a vacant position” among the possible accommodations. The employer moves first: “To determine the appropriate reasonable accommodation the employer, agency, or organization shall initiate an informal, interactive process with the individual with a disability in need of the accommodation.”

Pregnancy carries its own rules. The Minnesota rules apply to employers of any size, and the federal rule applies at 15 or more employees:

• Accommodation. Minn. Stat. § 181.939, subd. 2 applies to an employer “that employs one or more employees” and requires reasonable accommodations for health conditions related to pregnancy or childbirth “unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the employer’s business,” in the subdivision’s words. The employee and employer “shall engage in an interactive process with respect to an employee’s request for a reasonable accommodation,” the subdivision provides. It lists accommodations that “may include but is not limited to temporary transfer to a less strenuous or hazardous position, temporary leave of absence, modification in work schedule or job assignments,” along with seating, longer breaks, and limits to heavy lifting. No provider advice may be required, and no undue hardship may be claimed, for “(1) more frequent or longer restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds,” and “An employer shall not require an employee to take a leave or accept an accommodation.”
• Leave and return. Minn. Stat. § 181.941, subd. 1 provides unpaid pregnancy and parenting leave that “must not exceed 12 weeks, unless agreed to by the employer,” and Minn. Stat. § 181.942, subd. 1 entitles the returning employee to “the employee’s former position or in a position of comparable duties, number of hours, and pay.”
• Federal law. The Pregnant Workers Fairness Act, for employers with “15 or more employees,” makes it unlawful to “require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided.” 42 U.S.C. § 2000gg-1(4); 42 U.S.C. § 2000gg(2)(B)(i).

More on the state leave is on my page on Minnesota’s pregnancy and parenting leave law.

How does Minnesota law add to the FMLA’s limits on discipline?

Minnesota Paid Leave bars discipline “for requesting or obtaining benefits or leave” and reaches employers with any employee in covered employment, with state penalties on top of court remedies. The Pregnancy and Parenting Leave Act and the earned sick and safe time law each carry their own ban on discipline for using the leave they provide.

Minn. Stat. § 268B.09, subd. 1 provides: “An employer must not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee for requesting or obtaining benefits or leave, or for exercising any other right under this chapter.” It covers an employer “having any individual in covered employment.” Minn. Stat. § 268B.01, subd. 18. The protected leave includes a day for which “the employee has applied for benefits in good faith,” and the commissioner of labor and industry “may also issue a penalty to the employer of not less than $1,000 and not more than $10,000 per violation, payable to the employee aggrieved.” Minn. Stat. § 268B.09, subd. 1.

The reinstatement rules, effective January 1, 2026, track the FMLA’s. An employee returning from leave “is entitled to be returned to the same position the employee held when leave commenced or to an equivalent position,” Minn. Stat. § 268B.09, subd. 6, and that right starts “Ninety calendar days from the date of hire.” The same-decision limit appears in nearly the FMLA regulation’s words: “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 period of leave under this chapter.” Minn. Stat. § 268B.09, subd. 7. The employer again “must be able to show that an employee would not otherwise have been employed.”

The Pregnancy and Parenting Leave Act reaches employers with “one or more employees.” Minn. Stat. § 181.940, subd. 3. An employer “shall not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee for requesting or obtaining a leave of absence” under the pregnancy and parenting leave section, Minn. Stat. § 181.941, subd. 3, and the sick time law uses nearly the same words for a person who “requested earned sick and safe time, used earned sick and safe time.” Minn. Stat. § 181.9447, subd. 6(a). If the employee has also complained of disability discrimination, the Minnesota Human Rights Act’s reprisal section, Minn. Stat. § 363A.15, adds protection for a person who “opposed a practice forbidden under this chapter.”

My pages on Minnesota Paid Leave obligations and Minnesota’s retaliation statutes cover those laws in more depth.

How should an employer document a discipline decision that touches FMLA leave?

The record should show that the non-leave reason existed, that the company applies the same rule to employees who are not on leave, and when the decision was made. I suggest building that record before the decision issues, because the employer carries the burden of proving it would have acted the same way.

The cases show what that proof looks like:

• The rule was in writing. In Estrada, the warning form the employee signed “cited the five-points rule as grounds for termination if she continued to accumulate points.” In Lissick, the employer’s written safety guidelines recommended termination after a second lock-out, tag-out violation.
• The rule was enforced as written. In Estrada, the court relied in part on testimony that the company “actually and habitually enforces that policy,” and the employee “pointed to no evidence that it did not.” I suggest keeping a record of how the same rule was applied to employees not on leave, because that is the comparison an employee will try to draw.
• The rule was communicated for leave periods. In Bacon, the leave request form and the county’s FMLA materials both stated that the regular leave rules continued to apply during FMLA leave.
• The date of the decision is fixed. I suggest dating every step (the report, the investigation, the decision) because a reason first written down after the employee complains is hard to show as the reason at the time. Throneberry told trial courts that the moment for the same-decision question is “the date on which the employer actually interfered with an employee’s FMLA rights.”
• The investigation is real. Pulczinski credited a report built on statements from more than one coworker and a decision the company stood behind.

A violation can double the award as liquidated damages. Under 29 U.S.C. § 2617(a)(1)(A)(iii), the court “may, in the discretion of the court, reduce” that amount only if the employer proves the violation was “in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title.” I cover that defense on my page on FMLA liquidated damages and the good faith defense.

What Does This Mean for Your Next Discipline Decision?

An employee on FMLA leave can be disciplined or let go for a reason that has nothing to do with the leave. The employer has to prove it would have made the same call anyway, and protected absences cannot count toward it. Minnesota Paid Leave, the Pregnancy and Parenting Leave Act, and the sick and safe time law add their own bans on discipline and reach employers with as few as one employee. My employment law page covers the related issues for Minnesota employers. If you are weighing discipline or a termination that involves an employee’s leave, email me at aaron@aaronhall.com with a brief, general description, and I can tell you what your records would need to show.