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Can an employee be fired while on leave to care for a family member’s medical condition?

by | Oct 8, 2021 | Disability Discrimination |

The short answer is no, but to fully understand California’s leave laws, we must first look at California Family Rights Act (CFRA) and the Federal Family Medical Leave Act (FMLA). Despite the two covering similar issues, there are key differences.

California Family Rights Act Overview
The CFRA provides a protected leave for qualified employees. It is very similar to FMLA but has some specific differences.

Just like FMLA, in order for employees to qualify under FMLA, they must have worked for the employer a total of 1,250 hours in the last 12 months and must have a total employment with the employer of 12 months. The 12 months of employment do not need to be consecutive.

Both the FMLA and CFRA protect an employee while on leave and requires that employees be reinstated to the same or a similar job upon returning to work.

Unlike FMLA which applies to employers with 50 or more employees within 75-mile radius, CFRA was recently expanded to apply to smaller employers with 5 or more employees.

Both CFRA and FMLA provide up to 12 weeks of protected leave in a 12-month period.

Taking Leave Under CFRA and FMLA Concurrently
Both leaves allow for the employee to take an unpaid leave after the birth, adoption, or foster care placement of a child into the home. Both laws provide leave time for the employee in the case of their own serious health condition or to care for a family member with a serious health condition. The definitions for a serious health condition are similar between the law.

In these cases, both the CFRA and FMLA would run concurrently for the employee. It is vital however, that employers inform employees at the beginning of their leave that both types of leaves apply to the situation. If the employer doesn’t know the purpose of the leave until the employee returns to work, then the employer must immediately inform the employee that FMLA leave was used upon the conclusion of the leave. FMLA leave cannot be applied retroactively.

Definition of a Serious Health Condition
A serious health condition is any health condition, illness, or injury that requires in patient care at a health care facility, continuous care by a health care provider, or any period of incapacity where treatment may not be effective, such as stroke, Alzheimer’s, etc.

Family Member Relationships Allowed Under CFRA
The CFRA allows an employee to take leave for additional family members than FMLA provides. Family members provided include children, parents, and spouse. Unlike FMLA, CFRA allows employees to take time as well for domestic partners, and parents-in-law.

Under these laws, an employee cannot be fired just for taking medical leave to care for a family member with a medical condition so long as the member falls within one of the categories above and he or she suffers a serious health condition. If an employee is fired while on medical leave or shortly after returning from medical leave, he or she may have been wrongfully terminated.