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Can employees be fired for taking additional leave beyond FMLA or CFRA limits?

On Behalf of | May 13, 2015 | Wrongful Termination |

The short answer is no, but employers frequently get this wrong. Many large corporations have policies that require termination of employees after their twelve weeks of leave is over, but the employee still needs more time to heal before returning to work. Illegal application by employers of set leave limit policies can result in a wrongful termination.

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), a part of the Fair Employment and Housing Act (FEHA), allows qualified employees to take up to twelve weeks of unpaid leave for their own or a family member’s serious health condition. Serious health condition means illness, injury (including on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent or spouse of the employee that involves either:

  • In-patient care (i.e., an overnight stay) in a hospital, hospice, or residential health care facility; or
  • Continuing treatment or supervision by a health care provider

An employee may also take an unpaid leave for the birth of a child for purposes of bonding, or for placement of a child in the employee’s family for adoption or foster care.

Employers subject to these laws are those who employ 50 or more part-time or full-time employees within 75 miles radius of the employee’s work site. Covered employers also include the State of California and any of its subdivisions, cities and counties, regardless of the number of employees. To be eligible for leave, an employee must be either a full-time or part-time employee, have more than 12 months (52 weeks) of service with the employer, have worked at least 1,250 hours in the 12-month period before the date the leave begins, and work at a location in which the employer has at least 50 employees.

When the CFRA or FMLA leave ends, the employer must guarantee reinstatement to the same or comparable position. The employee can request that this guarantee be provided in writing. Employment in a comparable position means employment in a position that is virtually identical to the employee’s original position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, skill, effort, and authority, must be performed at the same or geographically proximate work site. This normally requires the same shift or same or equivalent work schedule be given to the employee.

Reinstatement may be denied to an employee if his/her position ceased to exist, such as in a lay-off. Reinstatement may also be denied if the employee taking the leave is a key employee (salaried and among the highest paid 10 percent) and the denial of reinstatement is necessary “to prevent substantial and grievous economic injury to the operations of the employer.” If this is the case, the employer must notify the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary as well as give the employee a reasonable opportunity to return to work.

There are times when an employee’s serious health condition is also a qualifying disability under the Americans with Disabilities Act (ADA) or California’s FEHA. In that case, the employer may still be required to provide additional leave to the employee after the twelve weeks of leave has expired. Extended leaves are a form of reasonable accommodation the employer must provide unless doing so would pose an undue hardship on the employer. In a large company, where the employer has many options for employee’s work to be completed during this additional leave period, there would not likely be an undue hardship. For example, an extended leave for a customer service representative in a bank where there are hundreds of other employees performing the same job would not likely cause an undue hardship. Where the employee’s position is unique and there is no other way for the employer to cover for the employee during his or her absence, the outcome may be different. These determinations are made on a case by case basis. Any set corporate policy to terminate employees after the twelve weeks of FMLA or CFRA leave expires, however, would be illegal. Enforcement of such a policy may expose the company to a wrongful termination lawsuit.

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