Fired While on FMLA?

Workers are protected by law against discrimination for exercising their right to take a temporary leave of absence from work under the FMLA. If you were fired from your job while on FMLA leave, your employer may have broken the law. You may have legal remedies, so Contact Us. The experienced employment attorneys at Kokozian Law Firm, APC have the expertise to review your situation and assess whether bringing a claim against your former employer would be to your advantage.

The FMLA is the federal Family and Medical Leave Act of 1993, 29 United States Code section 2601, et seq., and 29 Code of Federal Regulations Part 825. The law is applicable throughout the United States, including California. Under the FMLA, Eligible Employees of Covered Employers may take an unpaid, job-protected leave of absence from work for specified medical and family reasons. “Job-protected” means that you have a right to return to your job at the end of your FMLA leave.

To be eligible for FMLA leave your employer must be a Covered Employer—an employer who by law must comply with the requirements of the FMLA. Generally, private-sector employers who have 50 or more employees within 75 miles of your worksite (as well as most federal, state, and local government agency employers and elementary and secondary school employers regardless of the number of employees) are covered by the FMLA. If you have a private-sector employer that employs less than 50 employees within 75 miles of your worksite, then your employer is probably not a Covered Employer under the FMLA and you will not be entitled to FMLA leave, even if you otherwise satisfy the requirements to be an Eligible Employee under the FMLA.

Even if your employer is not a Covered Employer under the FMLA, you may still be covered under a state family and medical leave law such as the California Family Rights Act (CFRA) (California Government Code sections 12945.1, 12945.2, and 19702.3). Many employers who are not Covered Employers under the FMLA are Covered Employers under the CFRA. Under the CFRA, all California private-sector employers with 5 or more employees must provide their employees who are eligible under the law with unpaid family and medical leave.

To be entitled to FMLA leave, you must an Eligible Employee—an employee who satisfies the eligibility requirements under the FMLA.

You must have worked for your employer for at least 12 months to be eligible for FMLA leave. You need not have worked those 12 months consecutively. For example, seasonal work of 4 months per year over a period over 3 years in a row would satisfy the 12 months worked requirement. If you have had a break in working for the employer of more than 7 years, work performed before the 7-year break in service would not be counted towards the 12 months worked requirement.

You must have worked at least 1250 hours for your employer in the 12 months immediately before taking the leave of absence to be eligible for FMLA leave. This averages out to approximately a minimum of 24 hours per week if you worked in each of the 52 weeks before taking the leave of absence.

An Eligible Employee of a Covered Employer can take up to 12 weeks of FMLA leave in a 12-month period.

An Eligible Employee of a Covered Employer can take FMLA leave if the employee cannot work because of his or her serious health condition. An Eligible Employee of a Covered Employer can also take FMLA leave to care for a spouse, child, or parent with a serious health condition.

An Eligible Employee of a Covered Employer can take FMLA leave for the birth of a newborn child. As for bonding with a newborn child (baby bonding), women and men have equal entitlement to FMLA leave. Baby bonding leave must be taken within one year of the child’s birth.

An Eligible Employee of a Covered Employer can also take FMLA leave for the placement of a child with the employee for adoption or foster care. Bonding leave may also be taken within one year of the placement.

An Eligible Employee of a Covered Employer can take FMLA leave for certain military deployments or to care for a covered person in military service with a serious illness or injury.

Eligible Employees of Covered Employers are protected by law against discrimination for exercising their right to take a temporary leave of absence under the FMLA. An employer cannot use the fact that the employee has taken or requested FMLA leave as a negative factor in any employment decision concerning the employee. Employment decisions include, but are not limited to, promotions, suspensions, and firings.

For example, say you informed your employer that you needed to take a 10-week leave of absence under the FMLA to undergo and recuperate from surgery for your own serious health condition. Your employer notified you that you were entitled to FMLA leave. You then went out on FMLA leave. However, your employer is unhappy that you will be out of the office for a long period of time. Your employer also suspects this will not be the last time you take time off work because of your serious health condition. So while you are out on FMLA leave, your employer fires you and hires someone younger and healthier to replace you. Your employer says you were fired for dishonesty and poor work performance; however, you know this is unwarranted, as you were both honest and performed well at your job. You believe your employer’s stated reason for firing you is just a way of covering up the real reason you were fired—for taking FMLA leave. This is when you should contact an experienced employment attorney, who can go over with you the specific facts of your situation and, if merited. represent you in a claim against your employer.

If your employer has fired you while you were on, or refused to provide you with, a medical or family leave to which you were entitled under the FMLA, or if your employer or former employer has otherwise violated your rights, call the experienced employment attorneys at Kokozian Law Firm, APC or Contact Us via our online form.