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Can we lay an employee off who is on FMLA leave?

On Behalf of | Jan 31, 2023 | Employee Rights |

As interest rates keep rising, and the economy keeps heading into recession, employers are looking for ways to cut costs. One way that has gained traction recently, even with the world’s largest companies, is layoffs. However, one question that comes with layoffs is whether it is legal to lay off Tarrytown, New York, employees who are currently on FMLA leave.


For context, FMLA leave refers to the Family and Medical Leave Act of 1993. For those Tarrytown, New York, employers covered by the Act, it entitles their employees to 12 weeks of protected time off where they can care for themselves or a family member. This can be for a birth, care of a newborn, adoption, serious medical condition, etc.

FMLA leave and lay offs

The Act has implementing regulations, and the regulation that relates to layoffs is Section 825.216(a). This section explains that FMLA leave protects their jobs from being cut because of that leave, but a layoff can still occur, if it is not based on that leave.

Burden of proof is on the employer

However, Section 825.216(a) puts the burden of proof that the layoff was unrelated to the FMLA leave on the employer. The employer must have evidence that had the employee still been employed during the FMLA leave, they still would have been laid off.

This is why, before taking any action, attorney consultation is always recommended. Tarrytown, New York, employers should build their documentation of a valid business reason well before laying off an employee on FMLA leave.