Fired employee can’t retroactively claim FMLA

May 6, 2026

Elizabeth worked as an HR specialist. In 2021, her employer approved intermittent leave under the federal Family and Medical Leave Act (FMLA) for her migraines. Later that year, the employer approved a separate request for continuous FMLA leave for 2 months to care for her son.

When Elizabeth’s continuous FMLA leave ended, Scott, another employee, contacted Elizabeth about the conclusion of her leave. He told Elizabeth at least three times to return to work on November 15. He also told her that if she didn’t return to work as instructed, the company would fire her.

November 15 came, and Elizabeth didn’t return to work. Instead, she left a voicemail on the employer’s attendance absentee line that morning, stating that she had been unable to log into her computer and assumed she had been fired. She said that “it was a pleasure to work with you all,” thanked the employer “for the opportunity,” and expressed her intent to return company property. She didn’t ask for FMLA leave for the missed days.

The employer terminated Elizabeth later that day, citing the reason as “Leave Exhaust/Failure to Return to Work.”

On November 16, the day after she was terminated, Elizabeth attempted to report intermittent FMLA leave for her absences on November 11, 12, and 15, but to no avail. The employer considered the requests invalid since she had been terminated the previous day.

Elizabeth sued the employer, claiming that it had interfered with her FMLA rights and retaliated against her for using FMLA leave.

The court’s ruling

The court held that Elizabeth couldn’t show that the employer denied her FMLA leave, or that it fired her for legitimate use of FMLA leave. She was no longer entitled to FMLA leave at the time she attempted to retroactively report her November absences, because she was no longer an employee. The court also found that she hadn’t reported those absences as soon as “practicable,” as required.

The employer had — and enforced — a time-off reporting policy, which Elizabeth failed to follow. Elizabeth’s November 15 voicemail didn’t express any intention to take FMLA leave for that day. The employer also clearly stated her requirement to return to work.

Because of all this, the court ruled in favor of the employer.

Chitwood v. Ascension Health Alliance, 7th Circuit Court of Appeals, No. 25-1933, March 3, 2026.

Key to remember: While firing employees who retroactively request FMLA leave can be tricky, denying leave to an ex-employee is safer. Employers should, however, have evidence supporting the termination.

Publish Date

May 6, 2026

Author

Darlene Clabault

Type

Industry News

Industries

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