Termination While on Unpaid Leave
Attorney advertisement by Edwin Aiwazian of Lawyers for Justice, PC, headquartered at 450 N Brand Blvd, Glendale, CA 91203
For California workers, providing for their family isn’t just about the money. Often major life events such as the birth of a family member, or medical emergencies take priority over a job.
Many employers provide some form of medical leave to their staff. There are also laws protecting employees right to assist an immediate family member. However many employees may be worried about termination while on unpaid leave of absence.
Employers don’t always make it clear what rights workers are entitled to, or what risks come with taking unpaid time off.
Can an employee be fired while on unpaid leave?
Is Termination Legal while on unpaid leave?
In many cases, employers who fire workers on medical leave commit wrongful termination, violating protections under the Family and Medical Leave Act (FMLA).
The FMLA provisions allow for up to 12 weeks of unpaid leave with job protection for employees who have worked for at least a year. This requires employers to maintain group health benefits for the duration of the leave. These acts are designed to provide employees with job security and income protection while dealing with a crisis.
Who Qualifies under Family and Medical Leave Act (FMLA)
Not every worker qualifies for FMLA leave, and there are several factors that effect employee eligibility. One key factor can be the number of hours worked in the past year. Employees must have worked at least 1,250 hours in the previous 12 months. A break in service due to national guard or reserve duty does not impact FMLA eligibility. It’s important to note that these rules generally apply for all employers with at least 50 or more employees within a 75-mile radius.
FMLA Protects Unpaid Leave for the Following Reasons:
- Adoption of a child or foster child
- The birth of a child
- Bonding with a child
- Employees own serious health condition (including situations where employee is unable to perform essential functions)
- Caring for a family member with a serious health condition
- Victims of domestic violence
Not All Workers Have Access to Job Protected leave. Exceptions Can Include:
- A worker who works under 12 hours per week
- Certain roles within health or human services and construction industry
- A “Key Employee” who is a top 10% earner of their workforce.
Learn more about FMLA protections
Can You Get Fired For Taking A Leave of Absence? – FAQ
Can I be fired if I don’t qualify for FMLA? Yes, if an employee doesn’t qualify for FMLA protections, employment is generally considered “at will,” meaning an employer can terminate them for almost any reason or no reason at all, as long as it’s not illegal discrimination or retaliation. Without FMLA coverage, workers have fewer job protections during unpaid leave, so it’s important to understand the company’s policies and local laws. If an employee’s termination was unfair or based on discrimination, they should important to talk to an employment lawyer.
Can I get fired for taking approved vacation? In most cases, an employee cannot be fired for taking an approved vacation, just like any other form of legally protected leave. However if an employer was not notified, or the vacation was not approved, then termination may be lawful.
Can you get fired for using FMLA? Employees cannot be lawfully terminated for exercising their FMLA rights, as those rights are protected under federal law.
For example, an employee may be lawfully terminated if they fail to return to work as scheduled or violate the terms of their employment contract during leave, such as engaging in unauthorized outside work.
How many days of work can you miss before you get fired? Employees can be fired for missing a single day because California is an at will employment state. However employees taking medical leave receive job protection for up to 12 weeks. A California Leave of absence receives additional protections including broader definitions of family members, and the extension of medical leave to a wider range of workers.
Does leave of absence mean fired? No. Unlike termination, an unpaid leave provides job protection and insurance benefits for a period of time.
Can you get fired on FMLA? Employees cannot be fired for taking FMLA leave, as it is protected under federal law. However, employees can be terminated for legitimate, unrelated reasons such as company-wide layoffs or poor performance issues that existed before the leave. If the termination is directly tied to the use of FMLA leave, it may qualify as wrongful termination or retaliation, which is illegal.
Can you get fired for military leave? No. USERRA is a federal law that protects military service members, and requires job restoration in an equivalent position after military service.
Can you get fired for using PTO? No. But employers are allowed to deny the use of PTO. Employees who use PTO after being rejected, may be legally terminated.
Can I get fired for leaving work without permission? Yes. In most cases, leaving work without permission can be grounds for lawful termination. However, if the absence is due to medical reasons or another legally protected cause, termination may be illegal.
Can you get fired for not coming in on your day off? California employment is at will, meaning employers can fire workers for almost any reason. However if an employee believes they have been fired for discrimination, they should contact an employment lawyer, as such termination would be unlawful.
Can you be fired for something outside of work? Employees can be fired for off-duty conduct. Especially if it harms the company’s reputation or violates workplace policies. If off-duty actions didn’t impact job or break any laws, an employee may have grounds to challenge the termination, and take legal action.
Can you get fired for taking too many days off? Employees may be fired for excessive absences if time off isn’t legally protected or approved under company policy. However if a worker’s leave falls under the FMLA, ADA, or another protected category, firing they may violate federal law.
Can you get fired for taking a leave of absence? If an employee’s leave of absence is protected, like under the FMLA, ADA, or military leave laws, they cannot be fired. However with unapproved or unprotected leaves, employees may be legally terminated.
Can you get fired for ADA leave? No. A disabled employee cannot be legally fired for taking ADA leave, as it may qualify as a reasonable accommodation under the Americans with Disabilities Act (ADA).
What should I do if my boss rejects my FMLA Protected Leave? Any employer who rejects an employees FMLA leave is in violation of federal law. In this case, it’s likely an employee is entitled to compensation. Lawyers for Justice, PC is a top employment law firm that specializes in helping victims of wrongful termination.
With a skilled team of attorneys, Lawyers for Justice, PC is dedicated to representing employees’ best interests and ensuring justice is served. To get started, call 818-JUSTICE for a free case consultation!
Attorney advertisement by Edwin Aiwazian of Lawyers for Justice, PC, headquartered at 450 N Brand Blvd, Glendale, CA 91203