The Quick Answer: It depends, as FMLA job protection has limits, based on the circumstances.
The Family and Medical Leave Act (FMLA) gives eligible employees up to 12 weeks of unpaid, job-protected leave for specific health and family needs. The FMLA also requires that you be restored to the same job (or an equivalent one) when your leave ends, but even so FMLA protection has clear limits.
An employee on leave does not get more security than coworkers who remain at work. According to the law they have “no greater or lesser job protections," meaning you can be fired while on FMLA if your employer can show the decision had nothing to do with your leave. Valid reasons include things like layoffs, documented performance problems, or other issues that would have led to termination regardless of your absence.
FMLA gives up to 12 weeks of unpaid leave in a year, and the time off is supposed to be job-protected. In other words, your job doesn’t vanish just because you’re away.
To qualify you need to have worked at least a year, put in 1,250 hours during that period, and the employer has to have 50 or more employees within 75 miles of where you work.
FMLA can cover more than your own medical needs. It will usually apply if you’re caring for a spouse, child, or parent with a serious health issue, and it also applies when a new child comes into the family through birth or adoption.
Even though the time off is unpaid, your group health insurance keeps going under the same terms as if you were still clocking in.
When the leave runs out, you go back to your old job or something equal in pay, benefits, and conditions. Employers sometimes run FMLA alongside other leave, like workers’ comp or state family leave, so the weeks may not always add up the way employees expect.
An employee can be let go as part of a layoff or job cut that would have happened anyway, but the employer has to show the decision came from a business decision independent of the leave itself.
FMLA doesn’t protect against discipline for performance issues or misconduct already on record, so in a termination decision employers would have to rely on past warnings and documentation to back up the decision.
Leave taken using false information isn’t protected, but the “honest belief” rule would come into play, which means the employer needs a reasonable basis for thinking the leave was misused.
Employees have to turn in medical certifications on time and missing deadlines or never providing them can remove FMLA protections and make absences unexcused.
The way timing lines up with the leave itself can change how a termination is judged. If an employer can show the decision was already documented before the leave even started, or that it was made after the employee returned, the action is less likely to be treated as a retaliation.
“Interference” happens when an employer blocks or discourages an employee from using protected leave, and retaliation happens when the employer fires or takes some other action because the employee utilized that leave.
The Department of Labor makes it clear that employers cannot interfere, retaliate, or discriminate against anyone for using or even supporting FMLA rights (see Fact Sheet #77B).
When a dispute does reach a court, the case usually runs through a three-step analysis: first the employee has to show enough facts to suggest a violation, then the employer needs to give a stated reason for the termination, and then last, the employee has to prove that reason was just a cover for retaliation.
If a termination is found to have violated FMLA, an employee may be able to be put back in the position they would have been in without the firing. That can mean being reinstated to the same job or one with equal pay and benefits.
Back pay is also available, covering the wages and benefits lost between the firing and the judgment. In some situations the court may add front pay, which is future earnings the employee would have received if reinstatement isn’t realistic.
After a wrongful termination when the employer is shown to have acted in bad faith, the law allows for liquidated damages equal to the lost pay. On top of that, the employer can be ordered to pay the employee’s attorney’s fees and the court costs tied to the case.
CFRA affects more workers than the federal law because it applies to private employers who have as few as five employees. It also allows leave to care for more relatives, such as a domestic partner, grandparent, grandchild, sibling, or even a “designated person” with a close family-like bond.
PDL gives up to four months of leave for pregnancy or childbirth-related conditions and then once PDL ends, a new parent can take another 12 weeks under CFRA for baby bonding. That gives up to nearly seven months of protected time away from work.
California employees with a qualifying disability may also have rights under the Americans with Disabilities Act where additional leave can be considered a reasonable accommodation as long as it doesn’t create an "undue hardship" for the employer.
Intermittent leave can create scheduling headaches, but the FMLA doesn’t let an employer punish an employee for absences that qualify under FMLA. The employer has to work around the time away, even if that means shifting workloads or covering shifts another way.
Once the twelve weeks are gone, the federal protection ends, but in California a worker may still have time available under CFRA or PDL. Also if the condition counts as a disability, the ADA can sometimes give extra leave as a reasonable accommodation.
Employers can call with small questions like where to find files or login information, but they can’t assign actual work while the employee is out. If the calls start to turn into ongoing tasks it can become "interference" with your FMLA rights.
FMLA requires that employees be restored to the same job or one that is equal in pay, benefits, and working conditions. A demotion or reassignment that reduces pay or benefits would usually violate the law unless the employer can actually prove the change had nothing to do with the leave.
If you were fired during FMLA leave or right after coming back, hold on to every record you can, like reviews, warnings, emails about your leave, and the termination notice. If you open a case you will need those documents to show what really happened.
California adds extra protection through CFRA and PDL, but how those laws apply depends on the facts. The only way to know for sure is to have an attorney walk through the timeline with you and look at the paperwork.
Call the FMLA attorneys at Law Offices of Jeremy Pasternak at (415) 693-0300 or contact us online. Our attorneys handle FMLA and CFRA cases across California, and we can sit down with you, go over your situation, and explain what the next step might be.
Disclaimer: The information provided on this website is for general informational purposes only and does not constitute legal advice. Viewing this content does not create an attorney-client relationship with The Law Offices of Jeremy Pasternak. Employment law varies by state and situation, and legal outcomes depend on specific facts and applicable laws. While we make every effort to ensure accuracy, laws change, and unintended errors or omissions may occur. For advice on your particular circumstances, consult an attorney.
