Ask an Employment Law Attorney: Is It Wrongful Termination to be Fired While on Medical Leave?

My employer fired me when I missed work due to an illness, is that legal? Can my employer fire me if I miss work but have a doctor’s excuse? These are just a couple examples of the questions our employment law attorneys are frequently asked.

The answer is that, if someone is an at-will employee, yes, an employer can terminate that employee for missing work due to an illness, unless they qualify for a medical leave under the Family and Medical Leave Act. A medical leave under the Family and Medical Leave Act, or FMLA, is the only type of leave of absence that is protected within the state of Michigan.  This means that if an employee’s medical leave is not covered by the FMLA, then an employer could terminate their employment.  The FMLA offers job protection if both the employee and the employer qualify for coverage under the act, and if the employee’s leave is for a qualifying reason.

In order for the employment law attorneys at Gold Star Law to determine if a medical leave is protected under the Family and Medical Leave Act they must determine a few things. The first thing that needs to be determined is whether an employee is covered by the FMLA. In order for an employee to be covered under the FMLA they must have worked for their employer for at least a year, and within the past year, worked a minimum of 1,250 hours.  The second thing the employment law lawyers must determine is whether or not the employer is covered by the FMLA. A qualified employer must have 50 or more employees within a 75 mile radius.

If both the employee and the employer are within the coverage of the Family and Medical Leave Act then the employment law attorneys will need to determine if the reason for the medical leave qualifies for coverage as well. A medical leave qualifies for FMLA protection if the leave is due to the employee’s serious illness or injury or to care for a parent, spouse, or child who has a serious illness or injury.  However, what qualifies as a serious illness or injury is something that has to be analyzed on a case by case basis.  For example, missing work due to a cold is probably not covered, but missing work due to cancer treatment likely would be covered, assuming the other qualifications are met.  Likewise, an employee within the coverage of the FMLA can take a protected medical leave for the birth or adoption of their child.

Of course, even if all the above qualifications for a medical leave under the FMLA are met, an employer may have specific procedures for an employee to follow in order for the employer to approve their time off.  Also, the FMLA only protects an employee for up to 12 weeks of medical leave per year.  If an employee is on an FMLA leave of absence and takes more than the protected 12 weeks, their employer could choose to terminate their employment.

As with anything, there are exceptions. In some circumstances, where it is a reasonable accommodation and not an undue hardship, an employer may have to give some time off as an Americans with Disabilities Act, or ADA, accommodation to an employee who otherwise would not be covered by the FMLA (such as an employer with less than 50 employees or an employee who has not been there a year).  It could also be an ADA accommodation to give an employee a slightly longer leave (maybe 14 weeks instead of 12).

The standard is entirely different- whether the leave is a hardship on the employer is not a factor for the FMLA, but it is for the ADA.  So, if you have an employer with just 20 employees, and the person who needs time off is the only one doing what he/she does and the employer really can’t afford to be without them, it may be too much of an undue hardship to give time off.  However, if an employer has 45 employees and someone who is interchangeable with 30 other people needs 1 week off for a disability-related issue, it is probably a reasonable accommodation and the employer could be required to provide leave even though the employee isn’t covered by the FMLA.


If you believe that you were subject to a wrongful termination while you were on a FMLA protected medical leave, or if you believe that you were denied a leave of absence as an accommodation under the ADA, call the employment law attorneys at Gold Star Law today for a free consultation.