Can I Be Laid Off While I Am on FMLA?

 Posted on September 14, 2026 in FMLA

You can legally be laid off while on FMLA, but only if your employer can prove the layoff would have happened even if you had never taken leave at all. FMLA leave protects your job from being taken away because you took time off. However, it does not shield you from a layoff that was going to happen anyway. If you’re facing a layoff after approved leave in 2026, our Montgomery County, MD employment law attorney can help you figure out whether your layoff was actually lawful.

What Does Federal Law Say About Layoffs During FMLA?

Under 29 C.F.R. Section 825.216(a), an employee on FMLA leave has no greater right to reinstatement than they would have had if they had kept working the entire time. This means your employer does not have to hold your exact job open forever just because you are on leave.

Do I Have to Prove the Layoff Was Not Related to FMLA?

Suppose your employer claims that you were laid off for reasons unrelated to your FMLA leave and therefore were not entitled to return to your job. In that case, the employer must be able to show that you would have lost the job even if you had not taken leave. For example, the employer may point to a broader reduction in force or the elimination of your position.

The burden can be different in an FMLA retaliation claim. In that type of case, you may need evidence connecting your protected FMLA activity to the employer's decision to lay you off.

What Are Signs a Layoff Might Actually Be Connected to Taking FMLA?

Because the law protects against layoffs disguised as legitimate business decisions, certain patterns can raise questions about whether you were laid off because you took FMLA or because there was a legitimate performance issue. 

Timing of the Layoff

A layoff that happens immediately after you request leave, rather than during a documented, broader restructuring, deserves closer scrutiny.

Inconsistent Explanations

If your employer gives shifting or vague reasons for why your position specifically was chosen, that inconsistency can become important evidence that FMLA was not the cause of the layoff. 

Only Employees on Leave Were Affected

If the people caught up in the layoff turn out to be disproportionately those who recently took or requested FMLA leave, rather than a broader cross-section of the workforce, that pattern can be difficult for an employer to explain.

A Sudden Change in Tone or Communication

An employer who was supportive before your leave began, but who suddenly becomes distant, critical, or hard to reach once you are out, can be a sign that something shifted because of the leave itself rather than because of business needs.

No Documented Business Reason Beforehand

A legitimate restructuring leaves a paper trail, such as planning documents or notices to other employees. The absence of any such record can suggest the decision was made in reaction to taking FMLA rather than as part of a genuine business plan.

What Can You Do if You Believe Your Layoff Violated FMLA?

Under 29 U.S.C. Section 2615(a)(1), it is unlawful for an employer to interfere with, restrain, or deny an employee's FMLA rights. Employers also cannot use an employee's FMLA leave as a negative factor when making employment decisions. If this happened to you, you may have the ability to pursue a claim for lost wages, benefits, and other damages tied to the loss of your job.

What Evidence Should You Gather if You Were Laid Off on FMLA Leave?

Any documentation or notes you save in the days right after a layoff can end up being very important to your case. Focus on collecting:

• Your FMLA leave paperwork and any communication about your leave dates

• The layoff notice or termination letter, along with any stated reason for it

• Records of other employees affected by the same layoff, if known

• Any messages, emails, or notes from before your leave that discuss your job performance or standing

The sooner you do these things, the better. A thin paper trail is one of the easiest things to lose and one of the hardest things to rebuild once time has passed.

Contact Our Potomac, MD Employment Law Lawyer for Employees Today

Losing a job while dealing with a medical issue, a new baby, or a family emergency adds immense frustration on top of an already difficult time. If you are wrongfully terminated during FMLA, you deserve to know about your options.

Attorney Lindsay Freedman is available around the clock and represents clients in both federal and state court. He’s been recognized as one of the best employment lawyers in Annapolis, MD. Clients describe him as hands-on, accessible, and supportive, while still being aggressive when a case calls for it.

If you were laid off while on FMLA leave, talk with our Montgomery County, MD employment law attorney at Freedman Law, LLC as soon as possible. Call 410-290-6232 to go over what happened.