Can I sue my employer for interfering with my right to take a medical leave of absence?
If you were harassed, retaliated or discriminated against for taking a medical leave of absence under either federal or state law, then you may have cause to sue your employer for damages. The following is an overview of your rights to take a medical leave of absence for informational purposes only and is not intended to replace a professional opinion from an attorney specializing in employment law.
The Family and Medical Leave Act (“FMLA”) is a federal law that provides job protected unpaid leave to an employee who needs to be off work for either of the following reasons: (1) to take care of a “serious health condition” (includes pregnancy related conditions) that makes him or her unable to perform the essential functions of your job (be aware that an employer may request a medical certification for this); (2) to take care of a family member who has a serious medical condition; (3) for birth of a child or to take care of a child post-birth; and (4) to adopt a child. If you are a family member of a person on active duty in the Armed Forces, you have additional rights under the FMLA.
Eligibility: The FMLA applies to private employers with 50 or more employees working within 75 miles of the employee’s worksite.
Amount of leave: Under the FMLA, an eligible employee is entitled to 12 workweeks of leave in a 12-month period. During leave, your employer must continue providing benefits as if you were still working.
Your right to reinstatement and benefits: At the end of your leave, your employer must generally allow you to return to your position or an equivalent job. There are exceptions to this general rule, especially if you are a key employee. In addition, your employer must reinstate your benefits.
The California Family Rights Act (“CFRA”) has many of the same provisions as the FMLA. Just as the FMLA, it provides unpaid job protected leave and has many of the same eligibility requirements. The key differences are as follows:
- employee’s “serious health condition” does not include pregnancy, childbirth, or related medical conditions California enacted the California Pregnancy Disability Leave Law which deals with a medical leave of absence related to pregnancy.
- CFRA is more protective of employee privacy. Although an employer may request a medical certification, that certification does not have to identify or state the nature of the condition or the underlying diagnosis.
- Second and third medical opinions are not allowed to verify serious health condition of family members.
- “Child care” leave does not need to be taken all at once, e.g., may be taken in increments of two weeks.
Although the CFRA is generally more protective of employees, it does not provide for military/service member family leave like the FMLA.
At the end of the CFRA leave, your employer must reinstate you to your former or similar position.
If your employer is not covered by the CFRA, you may be entitled to take a medical leave of absence under the Fair Employment and Housing Act (“FEHA”), which applies to employers with 5 or more employees.
The California Pregnancy Disability Leave Law (“PDLL”) provides job protected unpaid leave to women for pregnancy, childbirth, and/or related medical conditions. Eligible employees are entitled up to 4 months of leave, which could be taken all at once or in increments. After end of PDLL leave, however, an eligible employee can take an additional 12 weeks of CFRA leave (provided that all eligibility requirements under CFRA are met).
As with other laws, after PDLL your employer must generally reinstate you to your former or similar position. Among other exceptions, an employer is not required to reinstate you if your position is no longer available due to reasons unrelated to your leave.
Employers often claim that the position is no longer available due to lack of funding, company reorganization, or layoffs. In certain cases, the employer’s reasons for refusing to reinstate you post-medical leave might be a cover up for discrimination. If you suspect that your employer is discriminating against you because you took a medical leave of absence, we urge you to contact an attorney.
If you have been denied medical leave, terminated, discriminated, or treated unfairly for taking a medical leave of absence, please contact us today. Our medical leave discrimination attorneys represent professionals and workers across all fields and provide free consultations. Engaging a qualified attorney as quickly as possible will increase your chances of obtaining a favorable outcome because it will enable us to begin building a file of important information and evidence needed to effectively represent you. Our offices are located in Los Angeles and Culver City.
For more information about your right to take a medical leave of absence, please visit the California Department of Fair Employment and Housing.