Q&A: Terminated While on Medical Leave
Published by James Peters January 16th, 2007 in Discrimination, Medical Leaves, Q&A, Wrongful TerminationQ: 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.
“Q&A” posts are based on actual submissions by potential clients. The names have been changed unless permission to print the names has been granted. Fact patterns may be slightly altered to make the issues and language clearer.
Tags
Discrimination | Family Medical Leave | Medical Leave | Q&A | Wrongful Termination
DISCLAIMER
Nice Post.
That was well said. Always appreciate your indepth views. Keep up the great work!
John
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?
@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.