Fired While on Medical Leave?

Were you fired while on a medical leave of absence from your job? Was this after your employer promised to keep your job position open for you until you returned from medical leave? Was this after your employer promised to reasonably accommodate you by finding you an open position you were qualified to perform when you returned from medical leave? If you were fired while on medical leave, your employer may have violated the California Fair Employment and Housing Act (FEHA) (California Government Code Sections 12900 – 12996) by discriminating against you based on the Physical Disability, Mental Disability, or Medical Condition that caused you to go out on medical leave. FEHA prohibits discrimination in the workplace based on a physical disability, mental disability, or medical condition. FEHA also prohibits discrimination in the workplace based on several other personal characteristics, including Age (age 40 or over) and Race. If you were fired while on medical leave, Contact the attorneys at Kokozian Law Firm, APC. We have a wealth of experience dealing with Leaves of Absence situations arising in the workplace.

Medical leaves of absence enable workers—who would otherwise lose their jobs because they either temporarily cannot work or temporarily cannot perform specific required work tasks—to return to their jobs when they have recovered from a serious illness or injury. Unfortunately, for some, taking a medical leave of absence is a threat to their livelihood. The longer you are out on medical leave, the less communicative your employer might be. The longer you are out on medical leave, the less tolerant your employer may be that you are not performing your job. The longer you are out on medical leave, the less likely it is that your employer will continue to hold your position open. The longer you are out on medical leave, the more likely it is that you will be fired.

This is what often happens. A worker is hired for a job. He or she is healthy and able-bodied at the time and can perform the job the way the employer wants the job performed without any accommodations. The employer is pleased because the employee is performing the tasks required by the job efficiently and reliably, which helps the business run smoothly and profitably. 

Then the worker suffers a serious injury or illness—for example, a broken bone from a car accident or from a fall on a slippery surface or is diagnosed with cancer and must under surgery followed by therapy.

After the worker suffers the injury or is diagnosed with the illness, her doctor provides a note indicating she cannot return to work until a specific date. The worker provides her employer with the doctor’s note. The employer tells the worker her job position will be held open until she returns to work on the date specified in the note. Unless a paid leave of absence is available, the employer provides the worker with an unpaid leave of absence either:

• Under the California Family Rights Act (CFRA) (California Government Code Sections 12945.1, 12945.2, and 19702.3), assuming she has worked for her employer for at least the past 12 months and during those 12 months has worked at least 1,250 hours for the employer, or
• As a Reasonable Accommodation under FEHA, if the worker has already exhausted her 12-workweek entitlement to CFRA leave and needs more leave time or does not qualify for CFRA leave. (A reasonable accommodation is something your employer does to eliminate a barrier that would otherwise prevent you, after suffering a serious injury or illness, from continuing with your employment.)

All goes well usually if the worker returns to work on the date specified in the doctor’s note given to the employer. However, recovering from a serious injury or illness often takes longer than originally anticipated. Additional treatment or surgeries may be required. A medication may have debilitating side effects. The healing process may not progress as quickly as hoped. Physical therapy may reinjure the worker or aggravate old injuries. The worker provides her employer with a second doctor’s note (and perhaps later a third and fourth) extending her medical leave. At some point the employer becomes inpatient and frustrated. The employer permanently fills the worker’s position with another person and fires the worker while she is on medical leave. Or the employer claims as a ruse that worker’s position has been eliminated due to business restructuring and fires the worker while she is on medical leave.

Another common situation is when the worker provides her employer with a doctor’s note indicating she can only work with restrictions—for example, she can only lift up to ten pounds or cannot stand for longer than five minutes at any one time. The doctor’s note also indicates that if the employer cannot accommodate the restrictions, then the worker cannot return to work and perform her full duties until a specific date. The employer informs the worker that the restrictions cannot be accommodated as the worker’s job position requires the worker to perform some of the very tasks the doctor has indicated the worker cannot perform. The worker is also informed there are no other available positions in the company for which the worker is qualified that fit within her work restrictions. Consequently, the worker goes on a medical leave. The worker is slated to return to work on the date specified in the doctor’s note. However, as is often the case, the worker is unable to return to work and perform her full duties on the date indicated. Instead, the worker furnishes one or more additional doctor’s notes extending her medical leave. At some point the employer permanently fills the worker’s position and fires her while she is on medical leave. Or the employer claims that the worker has abandoned her job (or conjures up some other pretext) and fires the worker while she is on medical leave.

In both the above situations the best course of action upon being fired is to consult with an experienced Wrongful Termination attorney like the attorneys at Kokozian Law Firm, APC. A qualified attorney will closely examine the facts of your situation, and, if merited, obtain a right-to-sue notice from the California Department of Fair Employment and Housing and file a lawsuit seeking damages in civil court alleging you were wrongfully fired from your job in violation of FEHA.

If your employer fired you while you were on medical leave, or if your employer or former employer has otherwise violated your rights by failing to pay you correctly for Overtime work or subjecting you to Discrimination or Retaliation or other unlawful conduct, call the experienced employment attorneys at Kokozian Law Firm, APC or Contact Us via our online form.