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Wrongful Termination for Using FMLA Leave in California

Emanuel Shirazi

Though many people are passionate about their jobs, work is ultimately a way to support one’s family and lifestyle. When family emergencies or illnesses arise, most workers prioritize their families rather than focusing on work. The federal government supports this through the Family and Medical Leave Act (FMLA). This act states that workers can take up to twelve weeks of unpaid time off for medical or family emergencies without jeopardizing their job. This allows workers to focus on what is important during a difficult time.

The law states that workers cannot be fired for taking advantage of FMLA because it is their legal right to do so. Unfortunately, employers do not always behave ethically in this arena. If your employer terminates or attempts to terminate you because you used your FMLA benefits, it is time to call the Los Angeles employment attorneys at Shirazi Law Firm. We can help you to understand your rights and take legal action to protect your job, family, finances, and future.

What Is FMLA?

The first part of protecting your rights is understanding what they are. As mentioned, FMLA, or the Family and Medical Leave Act, is a federal program that allows workers to take up to twelve weeks off work to recover from an illness or to care for a family member in a time of need. Some common reasons to take FMLA leave include the following:

  • Adopting or birthing a child within one year of the birth or adoption event
  • Caring for a child, parent, or spouse with a significant medical condition
  • Healing from a significant medical condition that precludes the employee from doing their job
  • Certain emergencies related to having a spouse, child, or parent in the military

These categories cover most reasons that an employee can take FMLA.

Payment and Benefits During FMLA

While an employee is on FMLA leave, they do not need to be paid. Though an employer may decide to continue paying their employee, FMLA states that the time off does not need to be paid. Rather, the act states that the employee cannot be fired for taking advantage of FMLA. The employer must also continue to provide health coverage for the employee during this time.

The law also states that an employer must allow the employee to return to the same position at work when they return from leave. If they cannot return to the same position, they must be allowed to return to one that is functionally identical and offers the following:

  • The same schedule and the same or similar commute
  • Similar tasks and responsibilities
  • Work at the same level of responsibility, expertise, etc.
  • The same pay and perks
  • The same benefits

If an employer demotes, fires, or changes the employee’s job because they used FMLA leave, they have violated the law and can be held accountable for their actions.

FMLA and Retaliation

It is considered retaliation if you have taken FMLA leave and your employer fires you as a result. Retaliation is illegal and offers grounds for a legal claim. If you have been fired because you took FMLA leave, you should begin to build your retaliation claim right away.

Though you may believe that your case is straightforward, you will still need proof that your employer engaged in retaliatory behavior. Many employers will try to claim that your termination is not connected to your FMLA leave because they understand that it would be illegal for them to do this. They often blame the situation on something else.

When you take time off under FMLA, always retain any paperwork, emails, texts, and other communication with your employer to help build your claim if you get terminated.

FAQs About Wrongful Termination for Using FMLA Leave

Can I Be Fired While on FMLA Leave?

Technically, you can be fired while on FMLA leave. However, if this occurs, the reason for your termination must be something other than your leave of absence. In other words, your employer cannot fire you just because you are on FMLA leave. However, if they had been planning to fire you before you left, they may still do so while you are on FMLA leave. If this happens, ask to see your employee file and relevant documents.

Can I Get Extra FMLA If My Loved One Is in the Military?

Yes. If your parent, spouse, or child was severely injured in the line of duty, you might be able to get up to 26 weeks of FMLA rather than the normal 12. This is not appropriate in all situations, but there are extra concessions for military families. If you believe that additional FMLA leave would be helpful, talk to your workplace’s human resources or a representative from your loved one’s military branch.

Contact Shirazi Law Firm

Our firm has been fighting for Los Angeles workers for many years. We understand the incredible damage that illegal employer actions can create, and we do everything in our power to protect you and your family from being the victim of these tactics. Our expertise gives you an advantage throughout your case.

For more information or to schedule a consultation, contact Shirazi Law Firm online today.


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