What Should I Do If I Was Fired While on Medical Leave?
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Is It Illegal to Be Fired While on Medical Leave in California?
Being fired while on medical leave is not automatically legal in California. Three separate bodies of law may make your termination unlawful: the California Family Rights Act (CFRA, Gov. Code § 12945.2), the Fair Employment and Housing Act’s disability discrimination and accommodation provisions (Gov. Code § 12940), and the duty to engage in an interactive process before terminating a disabled employee (Gov. Code § 12940(n)).
Both CFRA and FEHA cover employers with as few as 5 employees, so even workers at small businesses may have strong protections. If you were fired, or if your position was eliminated while you were out, you may have the right to sue for lost wages, lost benefits, and more. You have 3 years from the date of termination to file a complaint with the California Civil Rights Department (CRD), so acting quickly matters.
What Makes a Termination During Medical Leave Potentially Unlawful?
California law recognizes four distinct theories that can make a firing during or after medical leave illegal:
- CFRA interference: Gov. Code § 12945.2(q) prohibits an employer from interfering with, restraining, or denying any right protected under CFRA. Firing an employee for requesting or taking protected leave is a textbook interference claim.
- Disability discrimination: Gov. Code § 12940 bars an employer from terminating an employee because of a physical disability, mental disability, or medical condition. A serious illness or injury that prompted the leave is usually a protected characteristic under FEHA.
- Failure to accommodate: Gov. Code § 12940(m) requires employers to provide reasonable accommodations for known disabilities, which can include extending leave beyond the 12-week CFRA period. Ending employment before exploring that option may be an independent violation.
- Retaliation: Gov. Code § 12940(h) prohibits terminating an employee for opposing disability discrimination or asserting rights under FEHA or CFRA.
No single theory requires you to prove your employer acted with open hostility. Timing, pretextual justifications, and a failure to follow required procedures can all support a claim.
Which California Laws Protect You on Medical Leave?
Understanding which statute applies to your situation determines what you can recover and what deadlines you face. Here is how each law works:
California Family Rights Act (Gov. Code § 12945.2)
CFRA entitles eligible employees to up to 12 workweeks of protected leave in any 12-month period for their own serious health condition, or to care for a family member (child, parent, spouse, registered domestic partner, grandparent, grandchild, or sibling) with a serious health condition. To qualify, you must have worked for the employer for more than 12 months and logged at least 1,250 hours during the preceding 12-month period. Your employer must have 5 or more employees anywhere in California, a threshold significantly lower than the federal Family and Medical Leave Act’s 50-employee minimum.
Two CFRA protections are especially relevant when a termination occurs:
- Reinstatement right: Upon return from leave, you are entitled to the same position or a comparable position with equivalent pay, benefits, and terms of employment. The definition ’employment in the same or a comparable position’ (same/similar duties and pay at same/similar geographic location) appears in the current statute at Gov. Code § 12945.2(b)(6), not (b)(5) [source].
- Health coverage continuation: Under Gov. Code § 12945.2(e)(1), your employer must maintain your group health plan coverage during CFRA leave for up to 12 workweeks at the same level and under the same conditions as if you had continued working.
If your employer fired you, refused to reinstate you, or eliminated your position during CFRA leave, that conduct may violate § 12945.2(q)’s express prohibition on interference with any CFRA right. For a full picture of your CFRA rights, see our guide to California paid medical leave laws.
FEHA Disability Discrimination and Accommodation (Gov. Code § 12940)
FEHA covers employers with 5 or more employees (Gov. Code § 12926(d)), compared to the federal ADA’s 15-employee threshold. That gap matters: a California worker at an 8-person company has no ADA protection but has full FEHA protection.
Three FEHA provisions are most relevant to a firing during medical leave:
- Reasonable accommodation (§ 12940(m)): Extended leave beyond the 12-week CFRA period can itself be a required reasonable accommodation for a disabled employee. Unlike CFRA, FEHA sets no fixed durational cap on accommodation leave, as long as the employee can provide a definite return-to-work date.
- Interactive process (§ 12940(n)): Before terminating an employee with a known disability, an employer must engage in a timely, good-faith dialogue to identify effective accommodations. Critically, under Cal. Code Regs., tit. 2, § 11069(b)(2), the employer must initiate this process even without a formal employee request, if it becomes aware of a possible accommodation need through observation or a third party. Skipping the interactive process is an independent FEHA violation.
- Anti-retaliation (§ 12940(h)): Firing an employee for opposing disability discrimination or for asserting FEHA rights is separately prohibited.
A Concrete Example of How These Laws Apply
Consider this illustrative scenario: A warehouse worker at a 20-person distribution company takes 10 weeks of approved CFRA leave to recover from back surgery. Three days before her scheduled return date, HR calls to say her position has been “restructured” and no comparable role is available. She never received the written reinstatement guarantee required by Gov. Code § 12945.2(a). Her employer made no attempt to discuss whether a modified-duty role or a two-week leave extension would allow her to return safely.
This fact pattern touches all three legal theories. The failure to reinstate to a comparable position is a CFRA interference claim under § 12945.2(q). Eliminating the role because of her medical condition is FEHA disability discrimination under § 12940. The absence of any interactive process dialogue is a separate violation under § 12940(n). The employer bears the burden of proving the restructuring was unrelated to her leave and disability, and that no reasonable accommodation existed.
A frequent employer tactic is arguing that the position was legitimately eliminated for business reasons. Under FEHA and CFRA, timing alone (firing immediately before or after leave) is circumstantial evidence of unlawful motive, and the employer must produce a legitimate, non-discriminatory reason that is not a pretext.
What Steps Should You Take Immediately?
If you were fired while on medical leave, the steps you take in the first days and weeks can materially affect your claim.
- Write down everything now. Note the exact date and method of termination (phone call, letter, HR meeting), who was present, and the exact reason given. Memory fades; a contemporaneous written record carries evidentiary weight.
- Preserve all communications. Save emails, text messages, voicemails, and HR letters related to your leave approval, your termination, and any reinstatement denial. Do not delete anything from work devices before consulting an attorney.
- Gather your leave documentation. Collect your leave approval notice, any written guarantee of reinstatement, your doctor’s certifications, and your return-to-work date confirmation.
- Identify witnesses. Note any coworkers, supervisors, or HR personnel who were aware of your leave or who witnessed statements about your termination.
- Consult an employment attorney promptly. Deadlines are strict (see the table below). An attorney can identify which theories apply, whether federal law adds a parallel claim, and whether to file with the CRD, the EEOC, or both.
Our FMLA and CFRA attorneys in Los Angeles regularly advise employees in exactly this situation. Acting before deadlines expire preserves every option.
Filing Deadlines: Do Not Miss These
Claim Type | Agency / Forum | Deadline | What Starts the Clock
|
|---|---|---|---|
FEHA disability discrimination, failure to accommodate, failure to engage in interactive process | California Civil Rights Department (CRD) | 3 years (AB 9, eff. Jan. 1, 2020) | Date of the adverse employment action (termination) |
CFRA interference or retaliation | California Civil Rights Department (CRD) | 3 years | Date of the adverse employment action (termination) |
Civil lawsuit (FEHA or CFRA) | California Superior Court | 1 year | Date CRD issues right-to-sue notice |
ADA disability discrimination (federal) | EEOC | 300 days | Date of the adverse employment action (California’s CRD work-sharing agreement extends the standard 180-day period) |
Missing the CRD deadline typically forfeits your right to sue under FEHA or CFRA. The 3-year window is longer than many employees expect, but waiting creates evidentiary problems and limits your ability to recover lost wages for the full period.
For more on your rights under the federal and state leave laws, our article on FMLA and CFRA rights in California provides additional context.
Frequently Asked Questions
Can my employer fire me while I am still on approved CFRA leave?
Possibly, but it is legally risky for the employer. Gov. Code § 12945.2(q) prohibits interference with any CFRA right, and terminating an employee during approved leave is strong evidence of interference. The employer would need to demonstrate a legitimate, non-discriminatory reason for the termination that is entirely unconnected to the leave itself.
What if my 12 weeks of CFRA leave ran out and I still could not return?
Your CFRA right to reinstatement may be exhausted, but your FEHA rights continue independently. Under Gov. Code § 12940(m), additional leave beyond 12 weeks can be a required reasonable accommodation if you have a disability and can identify a definite return date. Your employer must engage in the interactive process (§ 12940(n)) before terminating you, even after CFRA leave ends.
My employer says my position was eliminated while I was out. Is that legal?
It may or may not be. Position elimination during leave is a common employer defense, but the burden is on the employer to show the elimination was unrelated to the leave and the underlying medical condition. If no comparable position was offered and no interactive process was conducted, the elimination may be pretextual.
Does it matter that my company has fewer than 50 employees?
No. Both CFRA and FEHA apply to employers with 5 or more employees (Gov. Code § 12945.2(a); Gov. Code § 12926(d)). Many California workers at small businesses assume they have no protection because the federal FMLA and ADA require 50 and 15 employees respectively. California’s thresholds are far lower.
What can I recover if I win?
FEHA and CFRA claims can support recovery of lost wages, lost benefits (including the value of health coverage your employer was required to maintain under Gov. Code § 12945.2(e)(1)), and other compensatory damages. Specific amounts depend on the facts of your case; no outcome is guaranteed.
If you have questions about a termination that occurred during or shortly after medical leave, you can also review our overview of FMLA rights and remedies or, for those in the Inland Southern California area, our resource on FMLA violation claims in Murrieta.
Talk to Setareh Law Group
If you were fired while on medical leave in California, the legal framework is detailed and the deadlines are real. Setareh Law Group represents California employees in CFRA interference, FEHA disability discrimination, failure to accommodate, and wrongful termination claims. Contact our office to discuss your situation with a member of our team. We do not charge for initial consultations, and we can help you understand whether you have a claim before any deadline passes.
Contact us today:
📞 Phone: 310-888-7771
✉️ Email: help@setarehlaw.com
🌐 Address: 420 N Camden Dr, Beverly Hills CA, 90210
Disclaimer: This information is provided for educational purposes and does not constitute legal advice. Each case is unique, and outcomes depend on specific facts and circumstances. Consult with a qualified California employment attorney to discuss your individual situation.
Sources and Additional Resources
Authoritative sources cited
- California Family Rights Act (CFRA, Gov. Code § 12945.2)
- Fair Employment and Housing Act’s disability discrimination and accommodation provisions (Gov. Code § 12940)
- Gov. Code § 12940(n)
- Gov. Code § 12945.2(q)
- significantly lower
- Gov. Code § 12926(d)
- EEOC
Related Setareh Law Group resources
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