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Can Your Employer Fire You During Medical Leave?

Wave after wave of layoffs is hitting Silicon Valley. Companies from Amazon to Microsoft to Google have fired thousands of workers each, allegedly in preparation for a looming recession. 

While layoffs are never pleasant, they are particularly hard on expecting parents and people on disability leave. Dozens of stories have surfaced of people on protected leave who lost their jobs in these layoffs, including new mothers, people out on disability, and more.

This has led many people to wonder how this is legal. After all, disability, pregnancy, medical, and parental leave are all protected in California. When someone is on protected leave, they have the right to return to their previous role when they return to work. So, how is it legal to lay someone off during their time away?

It boils down to the difference between an individual termination and wide-scale layoffs. Getting laid off is not considered the same as being terminated under state and federal laws. As such, it is not necessarily illegal for employers to include people on protected leave in these layoffs. Below, we break down the differences in these situations, what protections are guaranteed, and what you can do if you believe you have been wrongfully terminated during medical leave.

Protections for Pregnancy, Disability, and Medical Leave in Silicon Valley

Currently, two primary laws protect California residents from discrimination during medical or disability leaves: the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). These bills regulate what is considered protected leave, who is eligible for it, and the actions employers may not take during a worker’s time away. 

Both bills permit certain workers to take time off to bond with a new child, recover from an illness or disability, or care for a family member and be reinstated when they return. It may last up to 12 weeks per 12-month period and is unpaid. However, eligibility and covered employers differ between the laws. 

FMLA is a narrower bill. It only applies to employers with 50 or more employees. Additionally, it does not consider pregnancy a valid reason to take a leave of absence. Expecting mothers must instead meet the definition of a disability according to the Americans with Disabilities Act (ADA) if they need to take leave. While the Pregnant Workers Fairness Act (PWFA) goes into effect nationally on June 27th, 2023, it still will not grant workers the right to pregnancy leave. 

CFRA provides broader protections within California. It applies to all California employers with five or more workers, significantly expanding who is covered. Additionally, other state laws define pregnancy as a potential reason for disability, making taking protected leave for pregnancy-related issues simpler. 

Regardless of the law under which Silicon Valley workers take time away, they “are guaranteed a return to the same or comparable position and can request the guarantee in writing,” according to the California Civil Rights Department (CRD)

Additionally, if their original position is no longer available, they must be offered a substantially similar job in terms of pay, location, duties schedule, and working conditions. Employers may offer more comprehensive policies but cannot provide less than this minimum. Furthermore, they may not retaliate against workers who request leave under CFRA or FMLA rules. This ensures workers who need to take time away due to pregnancy, disability, or caring for a family member do not sacrifice their careers. 

Are Your Protected From Layoffs During Medical Leave?

So how are layoffs permitted to affect workers who are on leave? It’s because of the intention of FMLA, CFRA, and ADA. These bills are supposed to prevent discrimination against workers with medical or family needs, not to grant them additional privileges. As such, the CRD specifically states that “an employee is not entitled to reinstatement if the employee would have been otherwise laid off or terminated for reasons unrelated to their leave.” 

This is what permits layoffs that impact people on leave. As long as a company does not fire an employee due to requesting or taking this time, they are allowed to include these workers in broader layoffs. 

An example of what employers may not do during layoffs comes from Twitter. Analyses of the laid-off workers determined that 63% of all women in the engineering department lost their jobs, compared to only 48% of men. This indicates that bias was likely involved in selecting roles to eliminate and may provide employees grounds for wrongful termination and discrimination lawsuits.

What You’re Owed Before and After Layoffs

If you have been fired during medical leave, it was not necessarily illegal. However, your employer does owe you several courtesies:

  • They must give at least 60 days’ notice if the layoff is covered by the WARN Act.
  • They must continue to provide pay and benefits for those 60 days.
  • If you are not granted appropriate notice, you may be owed back pay to cover the benefits and pay you should have received during that time.

As such, your employer cannot terminate your benefits after announcing a WARN Act layoff for at least 60 days, even if you are on medical leave. Additionally, you have the right to any notice, termination packages, or other benefits listed in your employment contract. You may have grounds for a lawsuit if you do not receive this consideration. 

Of course, the last thing you need when you’re supposed to be caring for your family or recovering from an illness or disability is to fight a legal battle on your own. At the Law Offices of Todd M. Friedman, we specialize in helping workers with employment law claims in Silicon Valley, San Diego, Los Angeles, and around California. 

We can help you determine if your termination may have been discriminatory and whether you have received the compensation and notice you were owed. If your employer has violated your rights, we can represent you in court and fight for your right to fair employment. Learn more by scheduling your consultation today.

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