Can My Employer Fire Me While I’m on Medical Leave or After I Return in California?
Reviewed by Eliot Rushovich, Rise Law Firm, PC
If you are on leave protected by the California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA), your employer must generally hold your job while you are out and return you to the same or a comparable position when the leave ends. An employer also may not fire you, discipline you, or otherwise punish you because you requested or took protected leave.
These laws do not make an employee on leave impossible to fire. An employer can still end employment for a reason that has nothing to do with the leave, such as a genuine company-wide layoff. But the timing of a firing during or shortly after leave invites close scrutiny, and the employer often bears the burden of showing that the employee would have lost the job even without taking leave.
Which leave laws protect California employees?
Three leave laws apply most often. Many employees are covered by more than one, and CFRA and FMLA leave usually run at the same time.
| CFRA | FMLA | Pregnancy Disability Leave | |
|---|---|---|---|
| Employer size | 5 or more employees | 50 or more employees within 75 miles | 5 or more employees |
| Employee eligibility | 12 months of service and 1,250 hours in the past 12 months | 12 months of service and 1,250 hours in the past 12 months | No minimum service |
| Length | Up to 12 workweeks in a 12-month period | Up to 12 workweeks in a 12-month period | Up to 4 months per pregnancy |
| Covered reasons | Your own serious health condition; caring for a family member with a serious health condition; bonding with a new child; certain military family needs | Similar to CFRA, with a narrower list of family members | Disability caused by pregnancy, childbirth, or a related condition |
Under CFRA, the family members you may take leave to care for include a child, spouse, registered domestic partner, parent, parent-in-law, grandparent, grandchild, sibling, and a designated person. “Parent” includes a biological, foster, or adoptive parent, a stepparent, a legal guardian, or another person who stood in loco parentis to you when you were a child.
Employees who do not qualify for CFRA or FMLA may still be protected. If you have a disability, FEHA can require your employer to provide a leave of absence as a reasonable accommodation, sometimes beyond 12 weeks, and to engage with you in a good-faith interactive process before deciding it cannot accommodate you (Gov. Code § 12940(m), (n)).
What are your rights during leave and when you return?
CFRA guarantees that an employee returning from protected leave will be reinstated to the same position or to a comparable position with equivalent pay, benefits, shift, and other terms (Gov. Code § 12945.2). The FMLA contains a similar guarantee. During CFRA and FMLA leave, the employer must also continue group health coverage on the same terms as if you were working.
The law also prohibits an employer from:
- Firing, demoting, or disciplining you because you requested or took protected leave
- Interfering with or discouraging you from taking leave you are entitled to
- Counting protected leave against you under an attendance policy or in a performance review
- Requiring you to disclose your medical diagnosis; an employer may ask for a certification from your health care provider, but under CFRA it may not demand the underlying diagnosis
- Pressuring you to work, or to stay on call, while you are on protected leave
- Placing you in a lesser position or replacing you permanently while you are out, unless an exception applies
These protections cover the request for leave as well as the leave itself. An employee fired shortly after asking for leave, before the leave begins, may have the same kind of claim as an employee fired while on leave.
What reasons do employers give, and how are they tested?
Employers who end employment during or after leave usually rely on one of a few explanations. Each can be legitimate, and each can also be a cover for a decision driven by the leave.
- “Your position was eliminated.” An employer is not required to reinstate an employee whose job would have been eliminated even if the employee had not taken leave. The questions are whether the elimination was real, whether it was decided before the leave, whether others were affected, and whether your duties were simply reassigned to someone else.
- “We discovered performance problems while you were out.” Criticism that first appears during or after leave, when the prior record was good, is a common sign that the stated reason is not the real one.
- “You did not return on time.” An employer may act when an employee does not return after protected leave ends. Disputes often turn on whether the employer correctly calculated the leave, whether the employee asked for more time, and whether additional leave should have been offered as a disability accommodation.
- “We needed to fill the role.” Replacing an employee permanently because the employee was on protected leave is generally not a defense under CFRA or the FMLA.
As with other retaliation cases, the evidence that matters most is timing, a change in treatment after the leave request, comments by managers about the leave or the employee’s absence, and inconsistencies in the employer’s explanation.
What should you do if you were fired during or after leave?
- Gather your leave records. Keep copies of your leave request, any approval or denial, medical certifications you submitted, and every communication with your employer during the leave.
- Write down a timeline. Note when you requested leave, when it began and ended, what your employer said about it, and when and how you learned of the termination.
- Keep what you already have. Save your own emails, texts, performance reviews, and pay records. Do not take confidential company documents.
- Be careful with a severance agreement. A severance agreement almost always includes a release of claims, so understand what you are giving up before you sign.
- Pay attention to deadlines.
| Claim | Deadline |
|---|---|
| CFRA or FEHA disability claims | File a complaint with the Civil Rights Department within 3 years; then file suit within 1 year of the right-to-sue notice |
| FMLA | 2 years, or 3 years for a willful violation |
| Wrongful termination in violation of public policy | 2 years |
| Public employers | Non-FEHA claims generally require a government claim within 6 months |
These deadlines can be shorter or longer depending on the facts, so it is best not to wait.
Frequently asked questions
Can my employer fire me for being out sick if I did not formally request CFRA leave?
Possibly not. You do not have to mention CFRA or the FMLA by name. Once you give your employer enough information to suggest that your absence may qualify, the employer is generally responsible for asking for more information and designating the leave.
What if my employer says I am not eligible for leave?
Check the employer’s size and your hours and length of service against the table above. Even if you are not eligible for CFRA or FMLA leave, a disability may entitle you to leave as a reasonable accommodation under FEHA.
Can my employer replace me while I am out?
An employer may assign your work to others temporarily. It generally may not give your job away permanently and refuse to reinstate you because you were on protected leave.
I returned from leave and was demoted or had my hours cut. Is that allowed?
You are entitled to the same or a comparable position with equivalent pay, benefits, and other terms. A demotion, pay cut, or significant change in schedule after leave may violate CFRA or the FMLA.
What compensation is available?
Depending on the facts, recoverable damages can include lost wages and benefits, future lost earnings, and emotional distress damages under California law. Punitive damages may be available where the employer acted with malice, oppression, or fraud, and a prevailing employee may recover attorney’s fees. Public entities are not liable for punitive damages (Gov. Code § 818).
Talk to a California medical leave lawyer
Rise Law Firm represents employees throughout California in medical leave, disability, and wrongful termination cases, from chief executives to minimum-wage workers. We have secured millions of dollars for our clients, and we are particularly well known for handling high-profile cases. We work on a contingency basis, which means there are no fees or costs unless we recover compensation for you.
If you were fired during or after medical or family leave, contact us to request a free, confidential consultation. You can learn more on our Los Angeles family and medical leave, Long Beach family and medical leave, and Los Angeles wrongful termination pages.
This article provides general information about California and federal law and is not legal advice. Reading it does not create an attorney-client relationship.