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Can a California employer fire a worker who is out on a leave of absence?


Unfortunately, yes. Workplaces often have their own policies regarding maternity leave, medical leave, and absences caused by family and sick leave, which should be examined carefully for any loopholes that can be used to terminate employees unfairly. There are a few laws in place that can protect workers from losing their jobs while out on leave; however, there are time limits and exceptions for each of these provisions.



Understanding the Protections of the Family and Medical Leave Act (FMLA)

Employees may believe that their jobs are protected under the federal Family and Medical Leave Act (FMLA). While this law provides employees with twelve weeks of unpaid leave each year to cope with unforeseen illness or family problems, it does not apply to all workplaces. Employees can only enjoy the protections of the FMLA if they:

  • Work at a company that has 50 or more employees
  • Have worked for the company for at least one year
  • Have completed at least 1,250 hours of work for the employer in the required year of employment
  • Do not exceed twelve weeks of absences

The FMLA states that employees cannot be fired for taking their guaranteed weeks of medical leave, and they cannot be retaliated against for doing so. When employees return from FMLA leave, their employers are required to employ them in their former positions or in a job that is substantially similar. If the employee is on leave due to a medical disability, an employer cannot terminate the employee due to the protections of the Americans with Disabilities Act (ADA). Not only is it illegal to discriminate against an employee with a disability, an employer must attempt to make reasonable accommodations that will allow the employee to do his or her job.

Employers can terminate an employee for reasons unrelated to leave and can do so whether the employee is on leave or not. For example, if an employee goes over the allotted twelve weeks, even by one day, the employer could terminate him or her for excessive absences. The important thing to remember is that while employers may terminate an employee while on protected leave, the employer must provide a legitimate reason for termination that is unrelated to the leave. If your employer has unfairly denied you a position or denied your benefits, read through a copy of our free guide, The Ultimate Straight Talk Guide To Getting Your Hard Earned Wages Back.


Disclaimer: Please understand these discussions and/or examples are not legal advice. All legal situations are different. This testimonial, endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation.

William Turley
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