September 28, 2021
Is it legal to be fired during a medical leave? Depends on the circumstances.
At the federal level, you are eligible under the Family and Medical Leave Act (FMLA) for leave if your employer has more than 50 employees and you have worked for the company for at least 12 months and accumulated at least 1,250 hours of work before going on leave.
If you are a California employee, you are eligible for the California Family Rights Act (CFRA) license as long as your California employer has more than five employees and you have worked for the company for at least 20 business weeks.
Both allow you to balance your work and your medical needs without putting your employment status at risk. Any eligible employee taking medical leave under the FMLA or CFRA must be reinstated in their original position or one that is comparable to the one they held before leaving.
If your supervisor fires you while you are on medical leave or when you return, you may have a wrongful termination claim. However, we recommend speaking to an employment attorney because there are cases where firing an employee on medical leave is legal. For example, having performance problems before taking leave or having the company reduce the workforce applied to several employees are examples of situations that can cause you to be fired while you are legally on leave.
It is worth mentioning that you may be able to claim wrongful termination even if the company presents a “legitimate” reason for letting you go. For example, if you were late only a handful of times during years of employment and then got fired while on leave, you may have a claim.
What compensation can you receive?
If your employer unfairly fires you for taking medical leave, you could receive compensation for the following damages:
- Late payments
- Advance payments (compensation for future lost wages)
- Your attorney’s fees
- Liquidated damages (this applies when the employer acted in bad faith)