Fired During or After Medical Leave: What California Law Says
An employee takes medical leave — for surgery, for treatment, for a serious health condition. When they are ready to return, the job is gone. California law has specific protections against exactly this, and they apply to more employees and more employers than most people expect.
The timing is what makes these cases recognizable. An employee requests medical leave. The leave is approved, or should be. The employee is gone for weeks or months, recovering, receiving treatment, managing a condition. And then, before the return or shortly after it, the employer acts: the position is eliminated, the employee is told the job has been filled, or the employee comes back to find that the role has been restructured into something lesser. The stated reasons vary. The pattern does not.
Terminating an employee because they took legally protected medical leave — or because the employer would rather replace a recovering worker than hold the position — violates California law. The protections are specific, and they come from multiple overlapping statutes, each with its own eligibility requirements and scope.
The California Family Rights Act
The California Family Rights Act (CFRA), Government Code section 12945.2, provides eligible employees with up to twelve workweeks of unpaid, job-protected leave in a twelve-month period for a serious health condition that makes the employee unable to perform the functions of the position. CFRA also covers leave to care for a family member with a serious health condition, and leave for baby bonding, but this article focuses on the employee’s own medical leave.
Eligibility. The employee must have worked for the employer for at least twelve months and have worked at least 1,250 hours in the twelve months preceding the leave. The employer must have five or more employees. This last threshold is significant: the federal Family and Medical Leave Act (FMLA), which provides parallel protections, applies only to employers with fifty or more employees within seventy-five miles. CFRA reaches a vastly larger number of California employers.
Serious health condition. CFRA leave is available for a condition that requires inpatient care or continuing treatment by a health care provider. This includes chronic conditions such as diabetes, asthma, and epilepsy; conditions requiring multiple treatments such as chemotherapy, physical therapy, or dialysis; conditions involving a period of incapacity of more than three consecutive calendar days combined with continuing treatment; and any period of incapacity due to pregnancy (though pregnancy disability leave under Government Code section 12945 is a separate entitlement with its own provisions).
The reinstatement right. Upon return from CFRA leave, the employee is entitled to be reinstated to the same or a comparable position. A “comparable” position is one with equivalent pay, benefits, shift, schedule, geographic location, and working conditions, and with substantially similar duties and responsibilities. The right to reinstatement is not conditional on the employer’s convenience. It is a legal obligation.
Where CFRA and FMLA overlap — and where they don’t
CFRA and FMLA run concurrently when both apply — meaning the twelve weeks of leave satisfy both statutes simultaneously. But in many situations, only CFRA applies, because its reach extends to smaller employers.
CFRA also diverges from FMLA in its treatment of certain conditions. FMLA excludes leave for baby bonding from the definition of a “serious health condition” and treats it as a separate category; this is a structural difference that affects how leave is counted. CFRA, as amended effective 2021, also separately covers leave for a qualifying exigency related to military service and for organ and bone marrow donation.
For purposes of medical leave specifically, the key practical differences are the employer-size threshold (five employees for CFRA versus fifty for FMLA) and the broader scope of California’s anti-retaliation protections.
The right that makes leave meaningful
A leave entitlement without reinstatement protection is not really an entitlement — it is a suggestion. What makes CFRA leave meaningful is that it comes with a legal right to return to the job.
An employer cannot refuse to reinstate an employee returning from CFRA leave on the ground that the position has been filled. It cannot require the employee to reapply for the position. It cannot offer a lesser position as a substitute unless the original position was eliminated for reasons genuinely unrelated to the leave — and in that case, it must offer a comparable position if one is available.
The employer bears the burden of showing that a failure to reinstate was caused by legitimate reasons wholly unrelated to the exercise of leave rights. This burden is not easily met when the timing of the “elimination” coincides with the leave.
How the violations happen
The most common violations follow a limited set of patterns, each of which substitutes a neutral-sounding justification for what is, in substance, retaliation for taking leave.
The position that disappears. The employee goes on medical leave. While the employee is out, the employer restructures the department and eliminates the position. When the employee is ready to return, there is nothing to return to. The restructuring may be genuine — businesses do reorganize for legitimate reasons. But when the reorganization affects only the employee on leave, or when the employee’s duties are simply distributed among the remaining staff rather than truly eliminated, the inference of pretext is strong.
The replacement who stays. The employer hires a temporary replacement during the employee’s leave. When the employee is ready to return, the replacement has been performing well and the employer would prefer to keep them. This preference, however understandable from a business standpoint, does not override the employee’s right to reinstatement. The leave entitlement includes the right to return to the job, not merely the right to be considered for it.
The return to a lesser role. The employee returns from leave and is reinstated, but to a position with reduced responsibilities, a lower title, less favorable hours, or fewer advancement opportunities. This is not reinstatement to a “comparable” position. It is a demotion, and it violates the statute.
The performance issues that emerge after the leave. An employee with a clean performance record takes medical leave. Upon return, the employee is suddenly subjected to performance improvement plans, write-ups, or heightened scrutiny. The documentation is thin and the concerns are new. Within weeks or months, the employee is terminated for “performance.” The timing — from approved leave to termination — is the timeline of a retaliation case.
The denial of additional leave as accommodation. An employee exhausts CFRA leave but has not yet recovered sufficiently to return to work. The employer treats the exhaustion of the twelve-week entitlement as the end of its obligations and terminates the employee. Under FEHA’s disability provisions, however, additional unpaid leave may be required as a reasonable accommodation if the employee’s condition constitutes a disability and the additional leave would not impose an undue hardship. The employer’s obligation does not necessarily end when the CFRA leave does.
The disability accommodation overlay
CFRA provides a fixed twelve-week leave entitlement. FEHA’s disability provisions are more flexible and potentially more extensive.
When an employee’s medical condition constitutes a disability under FEHA — a physical or mental condition that limits a major life activity — the employer has an independent obligation to provide reasonable accommodations, which may include leave beyond the twelve weeks CFRA provides. Government Code section 12940, subdivision (m). The question is not whether the CFRA leave has been exhausted, but whether additional leave would be a reasonable accommodation that would enable the employee to return to work and perform the essential functions of the job.
There is no fixed outer limit on how much additional leave FEHA may require. The analysis is individualized: how long will the additional leave last? Is there a foreseeable return date? Can the employer absorb the employee’s absence without undue hardship? An employee who needs an additional four weeks to complete a course of treatment may be entitled to that leave as a reasonable accommodation. An employee with an indefinite prognosis and no foreseeable return date presents a different case.
The employer must engage in the interactive process before denying additional leave. A reflexive termination upon exhaustion of CFRA leave — without any assessment of whether further accommodation is possible — is itself a violation of FEHA, independent of whether the additional leave would ultimately have been reasonable.
The retaliation dimension
Requesting or taking CFRA leave is protected activity under FEHA. Government Code section 12945.2, subdivision (t). An employer that retaliates against an employee for requesting or taking medical leave — by terminating, demoting, disciplining, or otherwise penalizing the employee — has violated the statute, regardless of whether the underlying leave request was ultimately granted.
This means an employee who is fired shortly after requesting medical leave — even if the leave was never taken — may have a retaliation claim. The protected activity is the request itself, not only the leave.
The anti-retaliation protection also extends to employees who complain about a denial of leave rights or who participate in proceedings related to CFRA enforcement. An employer that terminates an employee for challenging a leave denial has retaliated against protected activity.
If you were fired during medical leave, or shortly after returning from it, or in connection with a request for leave that your employer did not want to grant, the law provides specific protections — and the employer’s stated reason for the termination is only the beginning of the analysis, not the end.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.