At King & Siegel LLP, we have helped hundreds of workers hold employers accountable through legal actions. If you have been denied sick leave or wrongfully terminated in violation of the paid sick leave laws, the FMLA, the CFRA, or other anti-discrimination laws, our attorneys are here to help. Call 213-465-4802 today!
Life is a rollercoaster of new additions, mishaps, adventures, and stressors, so it’s not unusual for California workers to wonder, “What happens when an employee exhausts FMLA?” “Can you extend FMLA?” and “Can you be fired after FMLA runs out?” Unfortunately, the answers aren’t always welcome. Once you have exhausted your FMLA leave, your job protection under FMLA no longer applies. Employers may choose to extend job-protected leave or offer alternatives, but it is not guaranteed. Check your employer’s policies or consult with HR for specific options.
When your 12 weeks of FMLA leave end, you can either return to work if able or request extended unpaid leave as a reasonable accommodation under the ADA or FEHA. But for someone commuting from the San Fernando Valley into Century City, working a hospital shift near East Hollywood, or trying to return to a physically demanding job in the industrial corridors south of Downtown Los Angeles, “going back to work” can mean much more than showing up on a certain date. A medical restriction on driving, lifting, standing, or sitting for long periods may make the old routine impossible even after FMLA ends.
If an employer in Los Angeles pushes you to return before your doctor clears you, refuses to discuss an accommodation, or treats the end of FMLA as an automatic resignation, King & Siegel LLP can help you understand what protections may still apply. The firm represents employees only and handles disability discrimination and medical leave disputes throughout the region, from the Westside to the San Gabriel Valley. Its attorneys also offer free 30-minute consultations, and Spanish-speaking staff are available for workers who prefer to discuss their situation in Spanish.
Key Highlights
- FMLA and CFRA provide 12 weeks of job-protected, unpaid leave for eligible employees.
- CFRA covers far more workers than FMLA since it applies to employers with 5+ employees.
- After FMLA/CFRA leave ends, job protection expires—but you may request additional unpaid leave as a reasonable accommodation under ADA/FEHA.
- Employers must grant extra leave unless it causes undue hardship (evaluated case-by-case).
- You must request additional leave in writing—employers are not obligated to assume you need more time.
- If your employer refuses to reinstate you, claims you “resigned,” or replaces you without offering a similar role, it may be illegal.
- Retaliation or discrimination for taking leave is prohibited under federal and California law.
- If your job is no longer available, your employer must provide a same or comparable position.
- Workers denied leave or fired after medical leave may have claims for wrongful termination or disability discrimination.
Your Rights Under the FMLA/CFRA
The Family Medical Leave Act (FMLA) is the most famous medical leave act in the United States. It is a federal law, meaning it applies to workers in all 50 states. The FMLA provides job-protected, unpaid leave for qualifying reasons, including your own serious medical condition or the serious medical condition of certain specified family members.
The FMLA provides that employers with more than 50 employees within 75 miles of your worksite must provide job-protected leave to employees who
(1) have been employed for more than a year as of the first day of leave, and
(2) worked more than 1,250 hours within the year before the first day of leave.
California’s Family Rights Act (CFRA) is the state version of the FMLA. Like the federal version of the FMLA, CFRA provides job-protected, unpaid leave to employees who
(1) have been employed for more than a year as of the first day of leave, and
(2) worked more than 1,250 hours within the year before the first day of leave.
Unlike the FMLA, CFRA applies to all employers with more than five employees. This means that CFRA covers many more employers than FMLA does. In fact, one estimate is that only half of employees work for large enough companies to be covered by the FMLA; CFRA covers all workers except those at extremely small businesses. This means that if you work for an employer in Los Angeles with between 5 and 50 employees, you are covered by CFRA but not by the FMLA.
FMLA leave ran out? Your rights may not be over.
If you need more recovery time, were told your job is gone, or were pressured to resign after medical leave, speak with King & Siegel LLP before assuming your employer is right.
If you need more time to recover
If your employer fired you or said you resigned
If you are ready to return but your role changed
Does My California Employer Have to Extend My FMLA Leave?
Sometimes. Under California state and federal law, your employer’s obligations don’t end with your FMLA/CFRA leave. As long as your employer has enough employees, they are also required to reasonably accommodate your medical conditions—including by providing additional unpaid leave beyond the 12 weeks required by FMLA/CFRA. Your employer must provide additional leave unless doing so creates an “undue hardship” for the employer.
Whether an extended leave would pose “undue hardship” should be evaluated on a case-by-case basis. The EEOC has issued guidance on factors to consider in whether a leave poses an undue hardship, including:
- The length of leave requested,
- The frequency of leave (if the requested leave is intermittent),
- The impact on co-workers,
- The impact on ability to serve customers/clients in a timely manner, and
- The size of the employer.
In general, you are more likely to be entitled to a shorter leave, rather than a longer one: a shorter leave usually is less disruptive to the employer and co-workers. Similarly, a larger California employer should be able to accommodate additional leave more easily than a smaller employer. These are just generalizations, however, and are no substitute for advice about your specific situation.
If you are taking CFRA/FMLA leave to care for a family member, it is less likely that your employer has a duty to provide additional leave. Federal law and most State laws do not require employers to provide reasonable accommodations because of an employee’s caretaking obligations. However, there is some authority for bringing these claims even where the law does not expressly require accommodations. If this is your situation, speak with a knowledgeable employment attorney at King & Siegel.
Can My Los Angeles Employer Fire Me at the End of My FMLA Leave?
Not usually. Under State and federal law, your employer’s obligations don’t end with your FMLA/CFRA leave. As long as your Los Angeles employer has enough employees, they are also required to reasonably accommodate your medical conditions—including by providing unpaid leave in addition to the 12 weeks required by FMLA/CFRA. Your employer must provide additional leave unless doing so creates an “undue hardship” for the employer.
Whether based in Culver City, Koreatown, South Los Angeles, or Burbank, your employer’s obligation to accommodate you is triggered by your request for additional unpaid leave. This means that your employer is not required to be psychic; the safest course of action is to expressly ask, in writing, for additional leave.
Unfortunately, employers often think that their obligations end on the last day of FMLA/CFRA leave. They sometimes tell employees that they have “resigned” or that their position is “no longer available.” If this happens, you may have a claim for wrongful termination.
Moreover, if you are treated differently than other employees upon your return from leave, your employer may be retaliating against you for taking leave or may be discriminating against you based on your disability.
How Long Can You Be out on FMLA?
For most qualifying reasons, how long you can be out on FMLA has a straightforward answer: eligible employees can take up to 12 workweeks during the applicable 12-month period. Workers may use that entitlement all at once or, when the law permits, intermittently or through a reduced work schedule. Certain employees caring for a covered servicemember with a serious injury or illness may qualify for up to 26 workweeks of military caregiver leave during a single 12-month period.
However, reaching the 12-week limit doesn’t necessarily answer how long you can remain away from your job. FMLA establishes one source of job-protected leave. Other protections may apply afterward, depending on why you remain unable to return, whether you qualify under another law, and whether additional time away would constitute a reasonable accommodation.
What Happens When An Employee Exhausts FMLA?
If you are wondering what happens when an employee exhausts FMLA, know that reaching the end of your available FMLA leave does not automatically mean your employer can require you to return without restrictions or that you will lose your job. If your own medical condition qualifies as a disability, additional leave or another workplace change may qualify as a reasonable accommodation under the ADA or FEHA.
This is especially important when your employer knows that you cannot return on the date your FMLA leave expires. Rather than treating the end of FMLA as an automatic termination date, an employer covered by disability discrimination laws may need to consider its separate accommodation obligations. California’s Civil Rights Department says an employer may have to start the interactive process when it becomes aware of a possible need for accommodation.
What if My Position is No Longer Available at the End of My FMLA Leave?
In general, your employer has an obligation to reinstate you to the same or similar position at the end of your FMLA/CFRA leave. Sometimes, employers hire a replacement during an employee’s FMLA/CFRA leave and choose not to reinstate the employee who was on leave. This is illegal unless your employer makes available to you a substantially similar position (i.e., one that pays similarly and has similar job duties and levels of authority/responsibility).
Protect Your Rights with the Help of Our California Employment Lawyers
At King & Siegel LLP, we have helped hundreds of workers across Los Angeles hold employers accountable through legal actions. Whether you live in Venice or Van Nuys, if you have been denied sick leave or wrongfully terminated in violation of the paid sick leave laws, the FMLA, the CFRA, or other anti-discrimination laws, our attorneys are here to help.
Need legal help?
From Century City to San Pedro, we provide free, confidential consultations to California workers. You should contact us as soon as possible to make sure your claim is still within the time limits set by law. If you have experienced discrimination or your employer has wrongfully denied you sick leave, contact us today through our website or give us a call at (213) 465-4802 to schedule a free consultation.
FAQs
Can You Extend FMLA Beyond 12 Weeks?
Sometimes. After your 12 weeks of FMLA or CFRA leave end, depending on your situation, you can request additional unpaid leave as a reasonable accommodation under the ADA or other federal laws, or California’s FEHA, and your employer generally must grant it unless it causes undue hardship. Ask in writing.
What Happens When Your FMLA Runs Out?
Your FMLA job protection ends, but you may still be entitled to additional unpaid leave as a disability accommodation, and you may qualify for income through State Disability Insurance or Paid Family Leave. If your employer refuses to reinstate you or claims you resigned, it may be unlawful.
Can You Get Short-Term Disability After FMLA Runs Out?
Possibly. In California, SDI can provide partial wage replacement if you remain unable to work due to your own serious health condition, and some employers offer short-term disability plans. These provide pay, not job protection.
Do You Have to Pay Back FMLA If You Don’t Return to Work?
You do not repay the leave itself, but your employer may be able to recover the health insurance premiums it paid during your unpaid leave if you do not return, with exceptions for circumstances beyond your control.
Can You Be Fired After Your FMLA Runs Out?
Not usually, at least not simply for needing more time. If you request additional leave as an accommodation and your employer fires you instead, or replaces you without offering a comparable role, you may have a claim for wrongful termination or disability discrimination.
Does FMLA Reset Every Year?
It depends on how your employer defines the 12-month period. It may reset on a calendar year, a fixed leave year, or on a rolling basis, which changes how much leave you have available.
Can You Get Unemployment After FMLA Runs Out?
Possibly, if you are able and available to work but were terminated. If you are still unable to work, you generally will not qualify for unemployment, though you may qualify for disability benefits instead.
Can Your Employer Require Medical Clearance Before You Return?
If you took FMLA leave for your own serious health condition, your employer may require a fitness-for-duty certification before allowing you to return. Under federal regulations, that certification can address only the medical condition that caused your need for FMLA leave. Your healthcare provider generally must confirm that you can resume work.
An employer can also require the certification to address whether you can perform the essential functions of your job. To impose that requirement, however, the employer must tell you in its FMLA designation notice that it will require the certification and provide information about the essential job functions your provider must consider.
Official Legal and Other Sources Used to Inform This Page
To ensure the accuracy and clarity of this page, we referenced official legal and other sources during the content development process.
- U.S. Department of Labor: Family and Medical Leave (FMLA)
- California Civil Rights Department: Job-Protected Leave for Employees in California
- U.S. Equal Employment Opportunity Commission: Employer-Provided Leave and the Americans with Disabilities Act
- U.S. Department of Labor: Fact Sheet #28: The Family and Medical Leave Act
- California Employment Development Department: Family and Medical Leave Act and California Family Rights Act FAQs
- U.S. Department of Labor: Family and Medical Leave Act Advisor, Fitness-for-Duty Certification
- Code Of Federal Regulations: 825.312 Fitness-For-Duty Certification
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.