Q&A: Terminated While on Medical Leave

Q: I took a one-month FMLA medical leave for surgery, but my employer laid me off two weeks into the leave. I have always heard that an employer cannot terminate an employee who is on a medical leave. Is this true?

--Unemployed (CA)

A: It is a common misconception among employees that employers cannot terminate them if they are on a medical leave. While in practice most employer are reluctant to terminate an employee who is out on a medical leave, the law does not explicitly prohibit terminating such an employee.

The Family Medical Leave Act ("FMLA") and its California counterpart, the California Family Rights Act ("CFRA"), protect employees from being terminated because they take a medical leave. It does not totally prohibit termination of an employee while they are on a medical leave. The difference is subtle, but it is there.

For example, assume a salesperson is out on FMLA leave and his company lays off their entire 100-person sales force. The employer is not required to keep the salesperson on medical leave on their payroll and terminating the salesperson would not be an outright violation of the FMLA.

However, if the salesperson is the only one out of the 100 salespeople to be laid off and there is no other clear reason for the termination, it begins to look more like the employee is being laid off because they are on an FMLA leave.

So, in response to your question, what really matters is why you were terminated while out on a medical leave, not just that you happened to be out on a medical leave when you were terminated.

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16 Responses to “Q&A: Terminated While on Medical Leave”

  1. Nice Post.

    That was well said. Always appreciate your indepth views. Keep up the great work!

    John

  2. Freddy says:

    What if you get injured at work and are on Workers’ Comp?
    I got injured at work and after 9m on disability I got a letter about Medical Leave i took it to my workers comp Doc and he filled it out and sent it back for me. Two weeks later i receive an other letter that says, You have been on medical leave of absence for nine months Our company policy states, employees off
    work for a total of nine months in any 12 month period are to be terminated from employment with the company.

    Is this legal?

  3. @Freddy: Your first stop should be a Workers Compensation attorney. Often clients are unaware that employee-rights and workers compensation are distinct, highly specialized practice areas and most (good) attorneys do one or the other, but not both. Most workers compensation attorneys do offer free consultations.

    We often work hand-in-hand with your workers compensation attorney to bring claims such as the one you may have. Terminating an employee for taking a workers compensation leave is illegal under California Labor Code 132a, but it would take a review of all the facts to determine whether you have a case worth pursuing.

  4. Geo says:

    Hi
    I was an IT Manager for the medical provider company, i was informed this morning that I have been part of the layoff due to the dissolution of my department and outsourcing. However my buddy is still working there as an IT tech and he was not effected, I have been home for the past four weeks due to shoulder surgery. Does the employer have the right to dismiss me with the reason of "Outsourcing IT" yet my friend is still there? while I have been out on sick leave? The employer has offered as part of severance package half of my current pay for one month since I have been using my vacation time during my recovery.
    Do i have a Case here?
    AlsoCan I apply for works-man compensation? The employer has indicated if I apply for works-man compensation they will not honor the severance package.

    Look forward to your reply.

  5. Karen says:

    I have been terminated 2 weeks into my medical leave. Is this legal?

  6. Robert B. says:

    I am on disability and not sure when I can return. My employer has told me that he is hiring a temp to take my place but cannot insure that I will have a job when I am ready to return. I am one of four employees in the company. Can they terminate me while I am out on disability.

  7. Undre says:

    Hello,
    Im trying to determine how much can i sue for because i was wrongfully terminated while on medical leave and denial of my COBRA benefits?

  8. KURT says:

    BOLOGNA!

    They can`t fire you when on medical leave and if they do, go file a action at your states dept of labor.

  9. Crany says:

    I have been on medical leave since
    4/2010. I received notice that my 401k plan
    Was changing, effective 1/2011. I was not
    Aware I had been terminated. Is this legal?

  10. This is awful. How can they fire an employee who's on medical leave? You can actually ask for legal advice on this matter. It's your right anyway.

  11. Gabriel Weinfeld says:

    What the law does not distinguish, we cannot distinguish.
    It is very clear indeed that if an employer terminates an employee while on medical leave is not an outright violation of the FMLA. I think what you should fight for is the validity of your termination. Does your employer have the right reasons to terminate you?! If yes, I think the employer did not violate the law. But if no, I think there's a big issue there.
    -Gabriel Weinfeld, a legal researcher

  12. Kia says:

    I took a personal leave because of elective surgery. My employer only allows a 14 day personal leave. They found out that it was for a medical procedure and are now requiring me to get a doctor's release note. I'm assuming, that because they require me to get this, they are considering it a medical leave. If the doctor won't release me by the 14 day rule, can they fire me? I tried to take a three week personal leave, but they wouldn't allow it.

  13. lt perry says:

    I have a shoulder injury that will require surgery. it is a non work related injury. my boss said if I have the surgery that I will be replaced. is that leagal?

  14. Boszoo says:

    I'm out on Medical leave in the state of California. If I'm out for 12 months what is the state law when the doctor releases me? Can the company fire my after the 12 months? If they ask me not to return am I eligable for unemployment?

  15. Rox says:

    I work in a non-profit office where I'm the only paid employee with 78 volunteers. I took a one year medical leave. I'm out 10 months and informed them I'm ready to return with a doctors release. Three days later I recieve a registered letter terminating me with no reason why.
    Is this a wrongful termination?

  16. Not Happy says:

    I know someone who has been injured in the line of duty on two seperate occasions. He has decided to go with workers comp however they keep on refusing medical treatments that the doctors have been trying get approved. Its been over five months and his pain is getting worse and he has not gotten any help and keeps getting any treatments denied. He has a lawyer but still nothing is helping him. What measures does he need to take before his condition gets so bad that he could become paralyzed??

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