Twelve weeks is not enough
When it comes to disability discrimination, many employers in California just don’t understand the law. Under the California Family Rights Act (CFRA), qualifying employees are entitled to up to 12 weeks of leave for a serious health condition either for themselves or certain family members.
Too often, however, employers in California do not recognize that leave for a serious health condition under CFRA or the federal Family and Medical Leave Act (FMLA) does not place a limit or a ceiling on leave as an accommodation for a disability. In California, a disability can be any condition that limits a major life activity. A bad back is such a condition, for example. There are many others, including high blood pressure, hospitalization for heart attack or serious orthopedic injury, or mental conditions such as depression.
If an employee is granted 12 weeks of leave under his or her California Family Rights Act policy at work, that does not mean that the same employee is not entitled to additional leave as an accommodation for his or her disability, such as a bad back, a heart condition, diabetes, a broken leg, a depression, onset of panic attacks and/or severe anxiety. . See Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331, 1338 (2013)
Right to the point, a serious health condition may also be a disability within the meaning of California law. When that occurs, there is no 12-week limit on the amount of leave that may be available as an accommodation for the disability. The 12 weeks may be a starting point. Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331, 1338 (2013)
Often, the employee will be put out on medical leave for several weeks, and the period of leave will be extended by his or her treating physician beyond 12 weeks. At this point, the employer will terminate the employee because his or her leave will have persisted beyond the 12-week limit in the family medical leave policy. The employer simply sends a letter to the employee stating that his or her family medical leave has been exhausted and that the employee is therefore terminated.
Interactive dialogue requirement
The decision to terminate the employee while still on medical leave is, in most instances, a violation of the law (if the employee is disabled within the meaning of California law). Because the employee with the bad back (in our example) is disabled within the meaning of California law, she’s entitled to an interactive dialogue about her requirements for accommodation, including additional leave as a possible accommodation.
It is important to note that medical leave from work constitutes one form of disability accommodation. When the employer fails to contact the employee to have this dialogue, the employer violates the law. Talk to an experienced and knowledgeable California disability accommodations attorney.
An interactive dialogue under the circumstances might disclose that the employee is capable of returning to part-time work, a restructured job position, or within a few short weeks with no restrictions at all. However, when the employer simply terminates the employee, it has never taken steps to find out this information.
What steps must an employer take to accommodate an employee with a disability?
An employer must take steps to accommodate an employee with a disability when the employee is capable of performing the essential functions of the job, and the accommodation will not cause an undue hardship to the employer. When the employer simply employs a bright line rule like 12 weeks to determine that an employee should return from leave or be fired, it has failed to engage in an individuated undue hardship analysis. And its actions are frequently invalid.
Some employers will take a wait-and-see attitude before they terminate an employee who has gone out on medical leave. If the employee has been out on leave for a disability, or for pregnancy disability, the employer will sometimes replace the employee while the employee is still out on leave, on the assumption that the employee will not return. When the employee returns after the leave has been concluded, the surprised employer will invent a reason to terminate the employee (e.g., restructuring, downsizing, recently invented job performance issues).
Again, this is often a mistake because it gives rise to a cause of action for retaliation for taking the medically protected leave. The retaliation action may be brought under the Fair Employment and Housing Act, or the California Family Rights Act, or the Pregnancy Disability Leave Act, depending on the facts and circumstances involved.
Contact us about your California disability case today
Contact The Rubin Law Corporation by e-mailing us or calling 213-224-9950 to speak with a Los Angeles discrimination lawyer about your employment law concerns.
Can FMLA be denied in California?
If you have been denied leave that is protected and guaranteed under FMLA or CFRA, then you can file a complaint with California’s Department of Fair Employment and Housing (DFEH) within three years of the denial or wrongful discrimination.
Can you be fired while on FMLA in California?
An employer cannot fire an employee just because they are on leave. Whether or not a termination is legal depends on the reason for the firing. If your Los Angeles employer has another reason for firing you that has nothing to do with your injury, medical leave, or illness, then it may be legal. For example, if you had performance issues or attendance issues before your medical leave or if there is no more need for your position, then those are legitimate reasons for termination.
How do you get paid for FMLA in California?
You can either receive payments via debit card or check.
Can you terminate an employee after 12 weeks of FMLA in California?
If there is a legitimate, nondiscriminatory reason to terminate an employee after 12 weeks of FMLA, then yes, the termination is legal. However, if you have stellar attendance, glowing performance reviews, and other documentation showing that you did your job well, then you may have a case if you have been terminated. Call Rubin Law Corporation to see if you have a valid case.
What is FMLA?
Caring for oneself or another family member is very taxing. You must manage your medical appointments, provide basic and medical care to yourself or another and deal with the physical or mental stress that comes with it. Federal and state law requires that employers provide medical leave to employees to manage their disability.
The two laws that regulate family and medical leave are the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). Under these laws, employers must provide unpaid leave for a worker who has a serious health condition or who needs to care for a family health member with a serious health condition. Under FMLA, employers are allowed to let employees take up to 12 weeks of unpaid leave with their job protected per year. In order to qualify, the employees must have worked 20 or more weeks within the current or previous year. Family members included in the act include the employees:
- Spouse
- Parent or guardian
- Child
You should speak with a Los Angeles attorney who specializes in cases related to the Family Medical Leave Act. Rubin Law Corporation has been helping workers in Los Angeles for almost 40 years and is ready to help you understand your rights under California law and the Family Medical Leave Act.
Examples of FMLA Violations
Employers in Los Angeles are prohibited from interfering with or denying an employee’s exercise of, or the attempt to exercise, any right the employee has under FMLA. Violations of the Family Medical Leave Act include refusing to authorize or discourage a Los Angeles employee from going on medical leave. Using an employee’s request for medical leave to justify adverse employment actions is also prohibited. For example, going on medical leave cannot be a factor in whether or not a Los Angeles employee is hired, promoted, or has disciplinary action taken against them.
Termination and Discrimination Upon Return to Work
If you faced discrimination at work, then call 213-224-9774 to speak with an attorney from our employee rights law firm in Los Angeles and to schedule your free consultation. We can advise you on what you need to do and what documents to gather to prove discrimination and wrongful termination.
How Does FMLA Work?
In order to qualify, you must work for a covered employer. You must first put in your request for medical leave under FMLA to your employer as soon as possible before you intend to take your leave. The only exceptions, of course, are when you face a medical emergency or an unforeseeable change in health or circumstances. Whether you are on paid or unpaid leave, you can continue to receive health, life, and supplemental insurance benefits.
What conditions qualify for FMLA leave?
FMLA is available for individuals with serious injuries or conditions who are unable to perform their job duties during the birth or adoption of a child, while caring for a child or foster child, caring for a spouse or parent with a serious health condition or caring for an active duty family member or injured service member. You must have worked for your employer for at least 1250 hours in the last 12 months.
How long can you be on FMLA?
You have up to 12 weeks of leave. Under FMLA, and up to 26 weeks to care for a service member who suffered a serious injury or illness.
