Can You Be Fired for Taking Leave?
| Read Time: 4 minutes | Employment Law 101

For most employees, a workplace leave of absence is no picnic. Unlike vacation days, job leave gives employees a temporary break from work to deal with specific family, medical, or life events. Many companies today offer leave time to workers facing personal challenges. However, employees often fear that extended time off can put their jobs at risk. 

So can you get fired for taking a leave of absence? Fortunately, several federal and state laws offer protections to employees concerned about having to choose between a job and their—or their family member’s—health. Let’s walk through some of these employee leave laws and look at situations when you can get fired during a leave of absence. 

What Laws Protect Employees Who Take a Break from Work? 

Two main types of laws deal with employee leave of absence rights. There are federal laws, like the Family and Medical Leave Act (FMLA), and state laws, such as California’s Family Rights Act (CFRA). Depending on where you live, there may also be local laws that handle employee leave that also apply to you.

Federal Law: Family and Medical Leave Act (FMLA)

The FMLA offers employees up to 12 weeks of unpaid leave per year for certain family and medical situations. These situations include the birth of a child, personal health matters, and taking on caregiving responsibilities for a family member with a serious medical condition. Employees caring for injured family members in the military can receive additional unpaid leave time under the FMLA. 

The FMLA guarantees eligible employees unpaid, job-protected leave. That means that an employee in one of the situations above can expect to return to the same job and benefits that they had before their leave of absence. It’s illegal for an employer to fire, demote, or otherwise punish an employee because they request or use their legally entitled right to work leave.

Because the FMLA is a federal law, all employers subject to the law in all states must follow it. To be subject to the FMLA, an employer must have 50 or more employees within 75 miles of a single worksite. Keep in mind that not all employees are automatically eligible for FMLA benefits, even if they work for a covered employer. Only employees who’ve been at their current job for at least a year and worked at least 1,250 hours are entitled to this kind of leave.

State Law: California Family Rights Act (CFRA) 

Some states, such as California, offer more leave protections to employees. California’s employee leave law, the California Family Rights Act, is similar to the FMLA. The CFRA also offers employees 12 weeks of unpaid, job-protected leave for qualified family and medical events. 

However, the CFRA includes a broader range of employers and employees than the FMLA. For one, the CFRA applies to companies with at least five employees. And unlike the FMLA, the CFRA does not require the employees to be within 75 miles of a single worksite.

The CFRA still requires employees to have a year of work (1,250 hours) under their belts before they’re eligible for leave benefits, though. 

What Situations Qualify for Job-Protected Leave?

The FMLA protects employees seeking leave due to medical and family-related life events. In states like California, additional laws offer employees leave for other situations. Let’s break down some of the most common forms of job-protected leave for employees.

Employee’s Serious Health Condition

Employees who can’t work due to an injury or illness can get job-protected leave from the FMLA to seek treatment. Employees must have a “serious health condition” for leave to be covered. Approval may also require documentation from a doctor to verify that they’re experiencing “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.”

Family Member’s Serious Health Condition

The FMLA also covers leave time for an employee to care for a parent, child, or spouse with a serious health condition. Under California’s leave law, workers can use leave to care for additional family members, including grandparents, grandchildren, siblings, and domestic partners.

New Parent 

Employees welcoming a child into their family through birth or adoption are also eligible for FMLA leave. However, the leave time only applies within a year of the birth or adoption. 

Military Injury

The FMLA gives up to 26 weeks of unpaid leave per year to employees with a sick or seriously injured military service member in the family. This applies only if the service member the employee is caring for is a child, parent, or spouse. Under California law, the spouse of a military service member can also be eligible for 10 days of unpaid leave while their partner is deployed. 

Civic Duties

Under the FMLA, employees receive an unspecified amount of unpaid leave if called to jury duty. 

Employees in California are also entitled to leave time to vote in elections. If you don’t have time to vote outside work hours, you can receive up to two hours of paid leave to visit the polls.

Is Termination While on Unpaid Leave Illegal?

Employers can’t target employees for firing specifically simply because they’re exercising their right to personal, medical, or other legally protected leave. If your boss fires you for making a legitimate leave request for a situation covered by the FMLA, they’ve violated your rights. 

However, there are a few situations when you can be legally terminated while on unpaid leave.

For one, employers can legally terminate employees for reasons unrelated to their taking protected leave. For example, an employee on FMLA leave could violate an employer’s code of conduct by posting offensive messages on social media. Even though they’re on a qualified leave of absence, they can still be fired for their misconduct. As long as the reasons for firing aren’t based on discrimination, retaliation, or the FMLA request itself, this doesn’t break any laws. 

Additionally, no law exempts employees on leave from layoffs. If you would have lost your job due to planned restructuring despite your leave, then your rights likely haven’t been violated.

Where Can I Get Help with a Leave of Absence Request? 

Asking your employer for a leave of absence can be intimidating. If you’re an employee concerned that you can get fired for taking a leave of absence, you should reach out to an employment attorney. A lawyer can evaluate your situation, identify which state and local laws apply, and help you prepare the documentation you need for your request. 

King & Siegel LLP Is Here To Support You 

Whether you’re dealing with health issues or caring for an injured family member, your job security shouldn’t have to suffer. If you were fired after a medical leave of absence or punished for a leave request, get in touch with an attorney immediately. The team at King & Siegel LLP has years of experience advocating on behalf of the workers of California.

Our award-winning lawyers trained at the nation’s top schools. We are passionate about fighting to ensure that our clients enjoy their full rights and legal protections. If you’re concerned about a leave request, give our office a call or reach out on our website to schedule a free consultation

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Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.

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