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Is it illegal to lay off an employee who’s on leave?

Emanuel Shirazi

There are many types of leaves of absences that employees can take. The following leaves are some of the leaves protected by law: medical/disability leave, family leave, and pregnancy leave.

Terminating an employee because they need medical or family leave is illegal. But, it is not illegal to terminate an employee in the middle of a leave if the reason is a legitimate, non-retaliatory reason that is not based on the employee’s leave. But, this is difficult to prove in many cases. Essentially, employers cannot use an employee’s medical or family leave as a reason to terminate them.

Some companies wait until the end of an employee’s leave to terminate them. Employers might want to give that employee more time to get back on their feet or just want to avoid a costly legal battle. Even though there might be a legitimate business reason for terminating an employee, companies still run the risk of the employee filing a discrimination claim. But, employees who try to take advantage of the system cannot use leave as a way to get out of a legitimate termination they see coming.

Unfortunately, there is no federal paid family leave policy in America. But, in states like California, parental leave of up to 8 weeks is partially paid by the state. Private employers can offer paid maternity leave, however employees on parental leave have no special legal protection when it comes to mass layoffs.

Employees can take parental leave for the birth or adoption of a child, under the Family and Medical Leave Act (FMLA) and in California under the CFRA—California Family Rights Act. Being on leave, including disability, does not protect workers from job cuts that would have happened anyway. Many employees don’t realize that there are limits on the protection of their job while on leave. Companies often must make budget cuts, eliminate positions, and ultimately terminate employees, including those that are on leave.

The CFRA/FMLA allows employees to take an unpaid, job-protected leave for their own medical condition, that of a close family member, and after the birth/adoption of a child. Employers are obligated to make sure employees return from their FMLA leave to the same position or a similar role. If an employee is terminated while on leave, they can likely take legal action.

There are several ways to determine if the layoff was illegal. Employees can compare who was fired and who was not (other workers while on leave?). How an employee was treated for taking medical or family leave can show the employer’s intent. Also, if the employer made any negative comments about the leave or if the employee was pressured to return early from their leave. These could possibly be signs of discrimination or CFRA/FMLA violations.

If you believe you have been wrongfully terminated based on a protected category such as pregnancy, disability, or a medical condition, or been denied medical leave, give us a call at (310) 400-5891 for your free confidential consultation.

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