By 
You took leave because you had no choice. A serious health condition. A newborn. A parent in crisis. The Family and Medical Leave Act existed for exactly this situation, and you used it the way the law intended. Then something shifted. Maybe you were told your position was eliminated while you were still out. Maybe you came back to find your responsibilities reassigned, your office occupied by someone else, and a meeting with HR already on the calendar. Maybe the termination happened your first week back, wrapped in language about restructuring or performance concerns that nobody mentioned before you left. The Mundaca Law Firm represents New York City employees who were fired during or immediately after FMLA leave, and the pattern in these cases is consistent enough to be recognizable: the employee exercises a legal right, and the employer treats that exercise as a reason to push them out.
What the FMLA Actually Guarantees
The Family and Medical Leave Act applies to employers with 50 or more employees within a 75-mile radius and covers employees who have worked at least 12 months and logged at least 1,250 hours in the year preceding the leave. Eligible employees are entitled to up to 12 weeks of unpaid, job-protected leave per year for specific qualifying reasons: the birth or placement of a child, a serious health condition that prevents the employee from performing their job, or the need to care for a spouse, child, or parent with a serious health condition.
The job protection element is the part employers violate most often. Under the FMLA, an employee returning from qualified leave is entitled to be restored to the same position they held before the leave, or to an equivalent position with equivalent pay, benefits, and working conditions. The employer cannot eliminate the position, demote the employee, reduce their pay, or strip their responsibilities as a consequence of taking leave. The law treats the leave period as if the employee never left, at least in terms of their right to come back to the same job.
This restoration right is not absolute. There are narrow exceptions for certain highly compensated employees and for situations where the position would have been eliminated regardless of the leave. But those exceptions are exactly that: narrow. The employer bears the burden of proving that the termination would have happened whether or not the employee took leave. If the timing suggests otherwise, the burden becomes very difficult to meet.
How Employers Disguise FMLA Retaliation
Employers who terminate employees during or after FMLA leave rarely admit the connection. They present alternative justifications that sound business-related and facially neutral. Recognizing the common patterns helps employees understand when the stated reason doesn’t match reality.
Position elimination is the most frequent cover story. The employee goes on leave. While they’re out, the employer redistributes their work. When the employee is ready to return, the employer announces that the position has been eliminated due to restructuring. The work is still being done. It’s just been absorbed by other employees or assigned to a new hire with a different title. The position wasn’t eliminated. It was renamed.
Performance concerns that materialize during or immediately after leave are another red flag. An employee with years of positive reviews takes FMLA leave and returns to find a performance improvement plan waiting. The issues cited on the PIP were never raised before the leave. No prior warnings exist. The PIP sets unrealistic benchmarks with a tight timeline, and when the employee inevitably falls short, the termination follows with documentation that makes it look performance-based. This manufactured paper trail is one of the most common tactics employers use to create a non-retaliatory justification for a termination that was decided the moment the employee requested leave.
Replacement during leave followed by termination upon return tells its own story. The employer hires someone to cover the employee’s duties during the leave, then decides to keep the replacement and let the returning employee go. Under the FMLA, the employer is required to restore the employee to their position when the leave ends. Choosing the replacement over the returning employee because the replacement “already knows the workflow” or “has been doing a great job” is not a lawful basis for refusing restoration.
Pressure to return early or discouragement from taking leave in the first place can also support a retaliation claim. An employer who responds to a leave request with comments about the inconvenience, the burden on the team, or questions about whether the leave is “really necessary” is creating a record that suggests hostility toward the employee’s exercise of their FMLA rights. When termination follows, those comments become evidence of motive.
Timing and the Inference of Retaliation
Courts evaluating FMLA retaliation claims pay close attention to the proximity between the leave and the adverse action. An employee who is fired the same week they return from FMLA leave has a timeline that strongly supports an inference of retaliation. The closer the termination is to the protected activity, the more difficult it becomes for the employer to argue that the two events are unrelated.
But retaliation doesn’t always happen immediately. Some employers wait. They build the paper trail described above. They gradually reduce the returning employee’s responsibilities, exclude them from projects, and manufacture a record of deficiency over several weeks or months. Then they terminate and point to the accumulated documentation rather than the leave.
This slow-burn approach doesn’t defeat a retaliation claim. It changes the evidence required to prove one. Instead of relying primarily on temporal proximity, the employee’s case focuses on the contrast between how they were treated before the leave and after. If the employee’s responsibilities, performance reviews, workload, and standing within the team were all positive before the leave and all deteriorated after, the leave is the dividing line. That before-and-after comparison is powerful evidence of retaliatory intent even when the termination comes months after the return.
New York City and State Protections That Go Beyond the FMLA
The FMLA is a federal law with specific eligibility requirements. Not every New York employee qualifies. If your employer has fewer than 50 employees, or if you haven’t met the hours or tenure thresholds, the FMLA may not apply to your situation. That doesn’t necessarily mean you’re unprotected.
The New York City Human Rights Law prohibits discrimination based on disability, pregnancy, caregiver status, and other protected characteristics. An employee who takes medical leave related to a disability or pregnancy and is fired upon return may have a discrimination claim under the NYCHRL even if the FMLA doesn’t apply. The city law covers employers with four or more employees, which captures the vast majority of New York City workplaces that fall below the FMLA’s 50-employee threshold.
The New York State Human Rights Law provides similar protections at the state level. New York’s Paid Family Leave law, which covers bonding with a new child, caring for a family member with a serious health condition, and certain military family needs, also includes anti-retaliation provisions that prohibit employers from terminating or discriminating against employees who take or request paid family leave.
These overlapping protections mean that an employee who doesn’t qualify for FMLA leave may still have a viable retaliation or discrimination claim under city or state law. The analysis depends on why the leave was taken, which employer actions followed, and which legal framework applies to the specific facts. The Mundaca Law Firm evaluates each case across all applicable federal, state, and city laws to identify the strongest available claims regardless of whether the FMLA itself applies.
What to Do If You Were Fired During or After FMLA Leave
Preserve everything. Save every email, letter, and text message related to your leave request, your employer’s response, any communications during the leave, and the termination itself. If your employer provided written reasons for the firing, keep those documents. If the reasons were given verbally, write down what was said, when, and by whom while the details are still fresh.
Request your personnel file. Your performance reviews from before the leave are evidence that may directly contradict the employer’s post-leave justification for the termination. If your reviews were strong for years and suddenly deteriorated after you took or requested leave, that contrast supports the retaliation claim.
Document the timeline. When did you request leave? When was leave approved? When did you return or attempt to return? When were you terminated? What changed between your departure and your termination? Each of these dates and events forms the factual spine of the claim.
Don’t sign a severance agreement without legal review. Many employers offer severance in exchange for a release of claims, and the release is designed to prevent you from filing a retaliation lawsuit. The severance may be worth accepting depending on the amount and the strength of your claim, but that’s a decision that should be made with an attorney’s analysis of what you’d be giving up.
Contact The Mundaca Law Firm About Your FMLA Termination
If you were fired while on FMLA leave, terminated shortly after returning, or pushed out through manufactured performance concerns following a leave request, The Mundaca Law Firm’s New York City office can evaluate whether your termination constitutes illegal retaliation. The firm investigates the full timeline, examines the employer’s stated reasons against the actual record, and pursues claims under whichever legal framework provides the strongest path to recovery.
Filing deadlines for FMLA retaliation claims and related discrimination claims vary by the type of claim and the filing body. The EEOC’s 300-day deadline, the one-year window for state and city administrative complaints, and the two-to-three-year windows for court filings all apply depending on the facts. Waiting too long risks losing the right to pursue claims that may be strong on the merits. Call The Mundaca Law Firm to discuss your termination and find out what options are still available.
Comments