What if I Am Fired After My Leave of Absence?

California has the largest civilian workforce in the United States with over 18 million.

California is a leader when it comes to legislating laws that protect workers.

California laws protect workers in various ways. Laws have been enacted to:

Combat wage theft (not paying a worker what a worker is entitled to be paid);

Protect workers from discrimination and retaliation based on sex, race, disability, pregnancy, or other protected personal characteristics;

Provide for a minimum wage well above the federal minimum wage; and

Enable workers to take leaves of absence from their employment.

California workers take leaves of absence from their places of work for many reasons and for various lengths of time. Depending on the law under which the leave of absence is taken, a leave of absence can consist of one unbroken continuous period of time. Some leaves of absence can be taken on an intermittent basis (for example, one day off one week, say for a doctor appointment; and two days off the following week, say to recuperate from chemotherapy.) Some leaves of absence can be taken on a reduced leave schedule basis (for example, because of a serious health condition, a worker who normally is required to work 40 hours a week is permitted instead to work 35 hours in a week).

California laws pertaining to leaves of absence can be divided into two general categories: (1) job-protected leaves of absence, and (2) leaves of absence that do not provide job protection. Fortunately, many of the leaves of absence available under California law provide job protection for the worker who takes the leave of absence. What this means is that when a worker returns to work after being on a job-protected leave of absence, these laws generally require the employer reinstate the worker to the position he or she held prior to going out on the leave of absence. If the employer refuses to reinstate the worker, then the employer has violated the law. If the employer violates the law, the worker should try to resolve the situation informally by notifying his or her employer that the law requires the employer to reinstate the worker. If that does not work, the worker has remedies, including the option of contacting an experienced employment attorney, who, if appropriate, may file a lawsuit for damages on behalf of the worker in civil court after obtaining a right-to-sue notice from the California Department of Fair Employment and Housing.

California Family Rights Act ("CFRA") (California Government Code Sections 12945.1, 12945.2, and 19702.3) Under the California Fair Employment and Housing Act (FEHA), California Government Code Sections 12900 – 12996

The CFRA is one of the most important job-protected leaves of absence available to California workers. The CFRA applies to California employers with five (5) or more employees. The CFRA generally applies to California workers who have worked for their employer for at least the past twelve (12) months and during the past 12 months the worker has worked at least 1,250 hours for the employer. When a worker returns from CFRA leave, he or she is generally entitled to be reinstated by the employer to his or her same job position or a comparable job position. A comparable job position is a position that has similar duties and pay that can be performed at the same or similar geographic location as the position the worker held prior to going out on the leave of absence.

The CFRA enables many workers to retain jobs they would otherwise lose because of a serious health condition or the serious health condition of a family member. For example, a leave of absence under the CFRA may be available to a worker who suffers from a serious illness such as cancer and who needs time off from work to undergo treatment or to recuperate from surgery. As another example, a leave of absence under the CFRA may be available to a worker who needs to take time off from work to care for a child who has suffered serious injuries in a car accident and who needs to be cared for and taken to doctor appointments.

Even if a worker is not eligible for CFRA Leave, Pregnancy Disability Leave of up to four months may be available to a worker who is disabled by pregnancy, childbirth, or a related medical condition. Pregnancy Disability Leave applies to all California employers with at least five fulltime or part-time employees. Unlike the CFRA, Pregnancy Disability Leave has no eligibility requirement, such as minimum hours worked or length of service before a worker affected or disabled by pregnancy is eligible for disability leave. When a worker returns from Pregnancy Disability Leave, she is entitled to return to the same position (or to a comparable position if the employer can show the worker would not otherwise have been employed in her same position at the time reinstatement is requested for a legitimate business reason unrelated to the employee taking pregnancy disability leave, such as a layoff caused by a plant closure).

Even if you are not eligible for CFRA leave or Pregnancy Disability Leave or another leave of absence specifically provided by statute, you may be entitled to a leave of absence as a reasonable accommodation under FEHA. A reasonable accommodation is something your employer does to eliminate a barrier that would otherwise prevent you (after suffering an injury or disability, etc.) from continuing with your employment. One form of a reasonable accommodation would be permitting you to take an unpaid leave of absence from work when you are not eligible for a leave of absence provided by statute. Another form of reasonable accommodation would be permitting you to take an unpaid leave of absence from work after your leave of absence under the CFRA or another statute has expired. Generally, your employer may be required to provide you with an unpaid leave of absence for a finite period of time as a reasonable accommodation and then permit you to return to your employment unless the proposed leave of absence would place an undue hardship on your employer. The burden would be on your employer to show that the leave of absence would be an undue hardship.

Please see our Leaves of Absence Lawyer webpage for other leaves of absence available under California law.

When returning from a leave of absence, knowledge is key. Knowing the law under which you took your leave of absence and whether the leave of absence provides job protection is crucial. If your employer violates your rights by refusing to provide you a leave of absence to which you are entitled or refuses to reinstate you to your job position after returning from a job protected leave of absence, your next step may be to contact an experienced employment attorney, like the experienced employment attorneys at Kokozian Law Firm, APC, who can explain your options to you.

If your employer has not given you your job back after you returned from a job protected leave of absence, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment attorneys at Kokozian Law Firm, APC or Contact us via our online form.