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Can an Employer Fire Me When I’m on Leave?

Law Offices of Charles P. Boylston Nov. 2, 2023

At the Law Offices of Charles P. Boylston, we understand how stressful it can be when you're on leave and facing the possibility of termination. We're here to help you navigate this complex situation, providing you with the right information about your rights and protections under various employment laws.  

From our office in Temecula, California, we also extend our services to all corners of Southern California, not limited to but including areas such as San Diego County, Riverside County, Orange County, and Los Angeles County. Our goal is to offer Southern Californians access to quality legal advice and representation when they need it most, particularly when facing employment uncertainties. 

Can an Employer Fire Me When I'm on Leave? 

An employer cannot fire you when you're on leave if the reason for your leave is protected under federal or state laws.  

For instance, if you're taking time off to recover from a serious health condition covered by the Family and Medical Leave Act (FMLA), your employer cannot terminate your employment during that period. The same applies if you've taken time off for military service or to serve on jury duty. 

Laws that Protect Leave Rights

There are several laws in place designed to protect your rights if you're on leave. It's important to know which ones apply to you, as they directly influence whether or not your employer can legally terminate your employment. These include: 

The Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a federal law in the United States that allows eligible employees to take unpaid, job-protected leave for specific family and medical reasons. Under the FMLA, employees are entitled to 12 workweeks of leave in a 12-month period for situations such as the birth of a child, the need to care for an immediate family member with a serious health condition, or when the employee themselves is unable to work due to a serious health condition. It's important to note that FMLA applies to public agencies, public and private elementary and secondary schools, and companies with 50 or more employees. 

The FMLA offers protection for employees who need to take unpaid leave for specific family and medical reasons. If your employer has 50 or more employees within a 75-mile radius, they can't fire you just because you're taking advantage of this act. 

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs. The purpose of the law is to ensure that people with disabilities have the same rights and opportunities as everyone else. If you're on leave due to a disability covered by the ADA, your employer must provide reasonable accommodations, including leave, unless it causes undue hardship to them. Discrimination against an employee because they have availed of their rights under this act is strictly prohibited. If you are on leave because of a disability and your employer fires you, it may be considered discrimination under the ADA, and you could have a valid legal claim against your employer. 

Pregnancy Discrimination Act (PDA)

The PDA prevents employers from discriminating against employees based on pregnancy, childbirth, or related medical conditions. If you're on leave due to pregnancy or a related condition, your employer cannot fire you solely because of your leave status.  

Specific California Laws Protecting Employees on Leave

In California, employees benefit from a few additional laws that offer increased protection.  

  • California Family Rights Act (CFRA): Similar to the FMLA, the CFRA allows eligible employees to take unpaid, job-protected leave for specific family and medical reasons. However, CFRA provides broader coverage in certain instances, such as permitting leave for care of a registered domestic partner. 

  • Fair Employment and Housing Act (FEHA): The FEHA prohibits discrimination on the basis of disability and requires employers to provide reasonable accommodations, much like the ADA. However, FEHA applies to employers with five or more employees, providing protection for employees in smaller workplaces who might not be covered under the ADA. 

  • Pregnancy Disability Leave Law (PDLL): This law provides up to four months of job-protected leave for employees disabled by pregnancy, childbirth, or related medical conditions. It applies to employers with five or more employees, and there is no length of service requirement for eligibility. 

  • California's Kin Care Law: Under this law, employees in California are allowed to use half of their accrued sick leave to care for a family member. 

Keep in mind, these are just a few examples. There may be other laws or local ordinances that provide additional protections to employees on leave, depending on your specific situation and location. For a complete understanding of your rights, consult with a knowledgeable employment law attorney. 

Circumstances When Employers Can Terminate You When on Leave

Despite the protections in place, there are circumstances when an employer can legally terminate an employee who is on leave.  

  • Performance or Conduct Issues: If there were ongoing performance or conduct issues prior to the leave, an employer may be able to terminate the employee. It's crucial, however, that the employer can prove these issues existed before the leave was taken. 

  • Layoffs and Downsizing: Should an employer decide to downsize or lay off employees due to economic or organizational reasons, an employee on leave can also be included in this, provided the decision to lay off that specific employee is not due to the leave itself. 

  • Exhaustion of Leave: An employer may terminate an employee who has exhausted their FMLA or other statutory leave if the employee is unable to return to work or if an extension of leave would cause undue hardship to the employer. 

  • Fraudulent Leave: If an employee is found to have fraudulently obtained leave, they may be terminated. This could include lying about a medical condition or using leave time for reasons other than those specified when obtaining the leave. 

  • Violation of Contract Terms: When an employee violates the terms of their employment contract, this can serve as a legitimate reason for termination, even if the employee is currently on leave. This could include breaches such as disclosure of confidential information, conflict of interest, or other specific conditions stipulated in the employment contract. It's crucial to note, however, that these contract terms must not contravene any protective labor laws, and the termination must not be used as a cover for discrimination or retaliation against the employee for going on leave. 

Remember, these are general scenarios. It's important to consult with a skilled and professional employment lawyer to understand your specific situation and the protections available to you. 

You Have Rights. Use Them. 

Navigating the complexities of being on leave can be challenging, but remember, you're not alone. At the Law Offices of Charles P. Boylston, we're here to help you understand your rights and obligations, fighting so that you're treated fairly and legally. If you feel you've been wrongfully terminated while on leave, don't hesitate to reach out. Let us use our experience to assist you in taking the next steps forward.