Family and Medical Leave Violations Attorneys in San Francisco
If you have been wrongfully terminated for taking medical leave, you should reach out.
Each year over 14 million Americans take leave from work to manage a medical condition or take care of a close family member. To be eligible for medical leave in California, you must have worked at least a year; during which you worked at least 1,250 hours (about 24 per week); and your employer must have at least five employees.
Only about 59 percent of American workers are eligible for unpaid leave under FMLA. But even if you do not qualify for medical leave, you may be able to request leave as a reasonable accommodation for a disability.
Have you been fired for taking medical leave?
The Family and Medical Leave Act, and California Family Rights Act allow employees 12 weeks of unpaid medical leave per year, and make it illegal to terminate employees for taking this leave.
The Family and Medical Leave Act
The federal Family and Medical Leave Act (FMLA) protects employees who need a leave of absence to treat their serious health condition, or care for a parent, child, husband or wife. California has a similar law, the California Family Rights Act (CFRA), which extends the benefit to domestic partners. Starting in 2021, grandparents, grandchildren, adult children and siblings are also included under California law; and employers with as few as five employees are covered, regardless of employee location. The FMLA and CFRA allow qualified employees up to 12 weeks of job-protected leave each year. The employer must continue paying its share of health benefits (if any) during the leave. The 12 weeks of unpaid leave can be used for:
CARE & RECOVERY
Overnight care in a hospital or other health care facility
This includes follow-up treatment at home, such as recovery from surgery.
ILLNESS & TREATMENT
Illness, injury or incapacity
An illness, injury or incapacity that requires visiting a health care provider.
Multiple treatments for an illness
Multiple treatments, such as chemotherapy, that require an absence of over three consecutive days each.
Long-term, chronic illness
A long-term chronic illness that requires treatment from a health care provider.
An employee giving birth to a child and taking time to care for a newborn or adopted child.
These 12 weeks can be added to four months of available pregnancy leave
Certain situations involving active military personnel
Such as treatment or recovery from injury incurred in the line of duty, on active duty, or for military caregiver leave.
Who Is Qualified for Medical Leave in California?
To qualify for medical leave, you (or a close relative) must have one of the above conditions, and meet all of the following requirements:
- You work for an employer with 5 or more employees at any location;
- You have worked for your current employer for the last 12 months (this can be non-consecutive); and
- You worked at least 1,250 hours (over 24 hours/week) in the 12 months before your leave. Note that paid vacation or sick leave does not count toward the 1,250 hours.
If you meet the requirements outlined here and above, you are eligible for job-protected leave.
Check With a Lawyer
If you meet these qualifications, you are eligible for job-protected leave regardless of any undue hardship, no-fault attendance policy or any other employer policies. If your employer can show you would have been terminated regardless of leave – for example, your entire department is laid off – then you can legally be terminated on leave. In these circumstances it is best to check with a lawyer.
What if I am not covered by FMLA/CFRA?
Unfortunately, almost 41 percent of American citizens are not eligible for job-protected leave if they get sick or need to care for a family member, because they do not meet the strict requirements.
However, some of these employees may be able to request medical leave as a reasonable accommodation if their medical condition qualifies as a disability. If so, the employer is required to evaluate the accommodation, and where possible return the employee to work after leave, in the same job or another available job. For more information see our disability discrimination page.
Even if you do not qualify for medical leave, you may still be able to request leave if your condition qualifies as a disability.
Disability and Medical Leave Frequently Asked Questions
Wrongful termination due to medical leave retaliation
A customer service worker for a large healthcare company developed severe carpal tunnel syndrome due to the repetitive data entry she had to do on the computer every day on the job. Although there are numerous available technologies that enable people with carpal tunnel to keep working, the company made no effort to find an accommodation for her condition and instead required her to go on medical leave, then terminated her employment.
We filed suit for medical leave retaliation, failure to accommodate a disability and other claims, and were able to reach a negotiated settlement that compensated her for wages she lost due to the termination.
You have a right to return to your job
One of the protections of FMLA leave is that your employer must reinstate you to your position or a comparable position after your leave is complete. A comparable position means the same pay and benefits, similar duties, responsibilities and authority; and in the same worksite with the same schedule. It is important to remember that your employer is not required to reinstate to the same or comparable job if your leave goes beyond the 12-week maximum. However, if your leave is extended, your employer may have to reasonably accommodate you by assisting you in finding another position at your company.
When do I request leave, and what do I tell my employer?
If you need medical leave you must give your employer 30-day notice if possible. In an emergency situation you or a relative or friend should notify your employer as soon as you reasonably can. You should tell your employer the leave is medical in nature, but you do not have to answer any questions about your condition. You do not have to allow your employer to talk to your doctor, but your employer may require a doctor's note, or give you certification forms to fill out, which you should complete within 15 days. If you do not complete the forms your employer must give you a second chance, but you must correct the problem in 5 days. You must treat these deadlines very seriously or your employer may deny the leave request. If the employer doubts the medical certification it may, at its own expense, require you to see a second doctor.
What if I do not want all 12 weeks in a row?
Tens of millions of Americans have chronic health conditions and may need medical leave at several different times during the year. Fortunately, they do not have to take their medical leave all at once but can take their leave intermittently in separate segments of time for a single health issue. Where possible, the employee must do their best to schedule their leave at a good time to avoid workplace disruptions.
What if I want to be paid while on medical leave?
California workers program may be eligible for up to 6 weeks of partial wage benefits during medical leave. You can also use sick, vacation or PTO pay, and your employer may require you to do so. Your employer must also continue to sponsor you on any health plan during your medical leave.
Call for a Free Case Evaluation
If you think you have been wrongly terminated due to a qualifying condition, it is crucial to contact an experienced attorney to understand your rights and to ensure that you are taking on the best plan of action. Please contact us for a free consultation.