Legal Question in Medical Leave in California

i was terminated while on maternity leave. what are my rights?, what is the time limit for action? can you help?.


Asked on 3/03/11, 8:36 am

2 Answers from Attorneys

Michael Kirschbaum Law Offices of Michael R. Kirschbaum

It would be difficult to assess your rights on such a short statement. Generally, it is illegal for an employer to terminate an employee because they went on maternity leave or family medical leave. But being on maternity leave is not a shield against termination, if the employer had legitimate reasons to do so. It always comes down to what the employer's true motive was.

Under state law, an employee terminated for a violation of the Fair Employment and Housing Act (which includes pregnancy and medical leave discrimination), must file a complaint with the DFEH within one year from the effective date of the termination, or a lawsuit within two years.

But you should discuss your case with an experienced employment law attorney as soon as possible, while potential evidence is still fresh.

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Answered on 3/03/11, 11:29 am
Terry A. Nelson Nelson & Lawless

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against because of requesting or taking the leave, or you are refused accommodation, then you can consider legal claims.

If your CA employer has at least 5 employees, they can not fire you because you are pregnant, must allow you to continue working as long as you are able, must 'reasonably' accommodate your disability, must allow up to 4 months of unpaid pregnancy leave under FEHA, and return you to the same or an equivalent job upon return to work, with accrued benefits.

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA / CFRA maternity / medical leave when you are unable to work [or must care for an immediate family member] because of a ‘SERIOUS health condition’ [that is properly confirmed and documented by the doctor], continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The employer can require you to use all accrued unused leave[s] as part of the 12 weeks, so as to make that portion 'paid'. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider. Being out sick with the minor illness or injury does not fall within the protections.

If you qualify for both, you get both. If you are out longer than those guarantees, they can fire you, unless the disability rules apply.

If your employer has a policy requiring they hold your job for you for a specific period of time while on disability, longer than the FMLA / CFRA rules provide, that is enforceable.

Overriding those stated protections, just because you are on leave does not mean you can’t be terminated. You have no special exemption against lay offs or termination due to business reasons. A company in downsizing can lay off a FMLA / CFRA leave person, as long as they can show they aren’t targeting ‘because of the leave’. They are simply risking claims if they do.

Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.

Now, if they violated those rules, contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years. You have at most a year from the 'violation' to file your claim.

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Answered on 3/03/11, 12:12 pm


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