Curious Quagmires in Leaves and Job Protection

By Lori Welty, Esq.

Absence Management Senior Compliance Attorney
FINEOS Corporation

An employee taking a leave of absence is afforded job protection for the duration of the available entitlement under the Family and Medical Leave Act (FMLA), most state leave laws, or in some cases, leave as an accommodation under the Americans with Disabilities Act (ADA). But in day-to-day leave administration, many grey areas may affect this job protection.

An employee cannot be terminated because they took a job-protected leave of absence, but taking leave does not shield them from job actions that would have otherwise occurred. For instance, an employer may discover misconduct while an employee is on leave. It isn’t unlawful to take adverse employment actions due to misconduct that was discovered during leave, though the employer should proceed with caution — and documentation — because doing so can give the appearance of retaliation.

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