Can I Be Fired While on Medical Leave?

Most employment in the United States is “at-will” employment. This term means that you can quit any time you like and that your employer can terminate your employment anytime for any legal reason. In other words, the answer to this question depends on the kind of medical leave you are on and the statutory protections it provides to you. Always speak with a California employment attorney.

Protections Under the Law

Federal Family and Medical Leave Act – Under the FMLA, you are entitled to up to 12 weeks of unpaid leave for your own serious health condition or that of a close relative. However, FMLA only applies to workers employed at businesses with 50 or more regular employees within 75 miles of each other. The employee must have worked at that business for at least one year for a minimum of 1,250 work hours in the previous year to qualify for coverage under FMLA. 

If you work at a covered business and you meet the qualifications for FMLA, you are entitled to a leave of absence. You should, if possible, provide your employer with 30 days prior notice or as much notice as practicable. If you do all of these, you may take 12 weeks of unpaid leave, at the end of which you are entitled to your old or an equivalent job. 

Even then, the employer can still terminate your employment if it has non-discriminatory, non-retaliatory reasons for doing so. An employee who is on FMLA leave may be considered for layoff during a reduction in the workforce so long as the leave is not a “negative factor” in choosing the employee for the layoff. If you have engaged in misconduct that will qualify for termination, you can be fired while on FMLA leave. So, your protection exists, but it is not absolute.

California Law – It is illegal for an employer in California to terminate your employment because you took a medical leave under the Family Rights Act. Firing you for using that medical leave may be grounds for a wrongful termination lawsuit. More employees are entitled to CFRA leave, as an employer only needs five employees for the law to apply. In addition, unlike the FMLA, under the CFRA, you may take leave to care for a domestic partner, grandchild, grandparent, sibling, or designated family member. 

Americans with Disabilities Act – Under the ADA, employers must reasonably accommodate employee disabilities. Sometimes that accommodation is more leave than otherwise available to that employee. But, the statutory requirement is for reasonable accommodation. If the leave requested might create an undue hardship for the employer, you may not receive it or may be terminated.

Speak with a California Medical Leave Attorney

There are legitimate reasons for firing someone who happens to be on medical leave, paid or unpaid. However, there are also prohibitions against firing someone because they are on medical leave. 

Because of the subtlety of some of these issues and the availability of statutory penalties versus a wrongful termination claim, your first important task after such termination is to contact an experienced employment law attorney. Minnis & Smallets can help to determine if you have a viable wrongful discharge case or a case under one of the medical leave statutes and then work to recover the compensation to which you are entitled. Don’t wait too long to call, as employment law disputes often have short statutes of limitation.