Any employee of a company that employs five or more employees is protected against medical leave retaliation. In addition, in companies that employ 50 or more employees, the employees are further protected in that they are entitled to Family Medical Leave Act (FMLA) leave, which is job-protected leave. Job-protected leave means that your position must be kept open to you for the entire duration of your leave period.
In California, it’s called California Family Rights Act (CFRA) leave. That type of medical leave forces the employer to hold the employee’s job open during the intended medical leave. In addition to medical leave retaliation, employees are also protected against disability discrimination by the same law, called the Fair Employment and Housing Act (FEHA).
What can I do if my job is threatened due to taking medical leave?
The best thing you can do if you work for a larger company, is to document your need for the leave with an FMLA application signed both by you and your doctor which is then given to your employer or your employer’s HR Department.
For companies with only five or more employees, a simple doctor’s note along with an email explaining why the leave is needed, the length of the leave, and the date on which you will be able to return submitted to the employer from your own personal email account is probably the best way to document your need for medical leave.
Documentation is key because the Fair Employment and Housing Act protects employees from retaliation but it does not protect employees from employers willing to lie and say they never got notice of medical leave. There are several interesting cases that cite that it’s illegal to retaliate but it’s not illegal to lie.
Unfortunately, employers are not the most truthful and honest about whether or not they received documents that might otherwise obligate them to hold a position open for the duration of the employee’s medical leave.
Can an employer fire me after I have just returned from medical leave?
Firing an employee after they return from medical leave opens an employer up to a lawsuit. However, often they will fire the employee and come up with a reason that they would have fired this employee anyway. They will claim they were just waiting for the end of the medical leave to tell the employee that their employment had been terminated.
In these cases, any documents that you might have that support that your job performance was fine prior to your medical leave and that only after the employer knew of your need for medical leave did the they start to criticize your work performance, or any documentation to show that your position was not eliminated will be helpful.
Employers will often say that the position you formerly held was eliminated and they will have already hired someone else and given them a different title, but have them doing the same duties that you were performing. When employers make the mistake of firing an employee immediately upon their return to work from a medical leave, it then becomes the burden of an employment attorney to prove that the employer’s false reason is a lie, and that the real reason was the employee’s physical disability or their requirement for extended medical leave.
In many cases, an employee of a larger employer does not have a medical condition or physical disability, but simply must take FMLA leave to care for a member of their family. Those cases are very sympathetic, because jurors also want to be allowed to take time off work to care for a sick relative, and they all understand the obligation to do so.
These kinds of cases have produced seven-figure verdicts because of the anger jurors feel in such circumstances. Perhaps this is because they too would want their employers to provide them with this necessary and legally required leave to care for a sick or injured family member, and it shocks the conscience to terminate an employee who takes unpaid leave to meet the needs of his or her family.
What kinds of medical leave protect my job?
Medical Leave at large employers with 50 or more employees is protected by the Family Medical Leave Act leave (FMLA). In California, it’s known as the California Family Rights Act (CFRA). Both types of leave are job-protected leave. The employer cannot hire another person to perform your job during your medical leave. That protects your job for up to 12 weeks.
FMLA and CFRA leave can be for things like pregnancy disability leave, bonding with a newborn or adopted child, and caring for a family member with a medical condition. Retaliation for taking these kinds of leave are sometimes called FMLA retaliation or CFRA retaliation.
If your medical leave is less than 12 weeks and your employer employs 50 or more people, you’re entitled to job-protected leave. CFRA leave and FMLA leave are similar but not exactly the same. CFRA leave is a bit more protective of California employees than FMLA leave is to non-California employees. If you are a California employee for a federal government agency, you cannot take CFRA leave, rather you have to take FMLA leave.
To qualify for FMLA or CFRA leave, you have to have worked for your large employer for more than one year, and must have worked more than 1,250 hours in the last 12 months. There are other requirements, but your employer is required to tell you whether you qualify for this type of leave, which requires a doctor’s certification.
There are exceptions even to those two types of leaves. If your company is having a plant closure and it happens to occur in the middle of your FMLA or CFRA leave, the employer is not required to hold a position open that would have been eliminated anyway by a legitimate plant closure.
However, employers take this excuse to an extreme, and fabricate position eliminations. They falsely claim that your position would have been eliminated whether you took FMLA leave or not. It’s then the job of an employment lawyer to argue and to discover facts to disprove the employer’s assertion that your position was actually eliminated. In all likelihood, your position was necessary and the duties you formerly performed are now being performed by someone else.
Sometimes an employer will hire a new employee to do a co-worker’s job and have your co-worker assume your duties. Then, they can falsely claim that your duties subsumed with a pre-existing employee and no one was hired to replace you.
They’ll try to convince both you and the jury that they have not added any employees since your position was eliminated. Many times, we are able to show that this other worker was hired to take over your co-worker’s job duties so that your co-worker could perform the duties you formerly performed.
What should I do if my employer retaliates against me for taking medical leave?
If your employer retaliates against you for taking medical leave, call an employment attorney right away. Once you’ve documented that your leave is necessary with a doctor’s note, you are in a fairly strong position if your employer is required to hold your job open.
If your employer employs between 5 and 50 people without job-protected leave, and if we can show that your request for medical leave was a substantial factor in their refusal to reinstate you, we can still win the lawsuit, and those lawsuits can still be very valuable.
We have repeatedly seen juries award seven-figures for that type of retaliation, mainly because it’s so abhorrent that an employer would retaliate, particularly against a long-term employee who needed leave to take care of a family member or their own serious medical condition.
What should I do if my employer refuses to reinstate me to the same position?
Always document your complaint with the employer, preferably using your own private email account, so that you retain a copy of the sent email after your eventual termination. Also, call an employment lawyer right away because the sooner we can get involved, the sooner we can help you document things properly so that you’ll be ideally positioned if you must file a lawsuit. With documentation, you will be in much better stead to prove that your employer had bad motives in refusing to reinstate you, and to show that your utilization of medical leave was in fact the cause of your termination.
Why are employers motivated to retaliate against employees who take medical leave?
It’s very expensive and sometimes almost impossible to replace a skilled employee for three months and achieve desirable results. Much of the reason that you are so valuable to your employer is because you know how to do your job. You know the requirements of the work, and how your employer likes it to be done.
In many cases, it’s nearly impossible to find an experienced replacement employee for just a short period of time. Rather than try, an employer will get a new permanent employee. Odds are that new employee will be younger, less expensive, and not suffering from a medical condition. It’s cost effective. Employers take the risk because if they get away with it, it’s worth it, and employees rarely take action against them.
How do employers try to get away with firing employees who took medical leave?
Employers lie because lying is not illegal. Luckily, oftentimes there are documents your employer keeps which we are able to obtain through discovery, and we are able to use these documents to show that the employer’s stated rationale for your termination was fabricated. The best thing you can do is to keep as much documentation of your need for medical leave as possible.
Keep the communications back and forth with your employer and your doctor’s notes, the FMLA certification forms, and either the approval letters or the refusal letters from your employer regarding the request for job leave. Bring those documents to your attorney.
That type of documentation goes a long way in proving the employer’s bad motives in terminating your position. These kinds of cases are very straightforward to litigate and juries are very sympathetic towards people, especially long term employees, who had to take time off either for their own serious health condition or for that of a family member.
Employers try to get away with making up false reasons because they believe that only a small percentage of employees will actually sue them. It’s important to call a lawyer right away to evaluate the facts, the timing, and the necessity for your position, and use this information to show that the employer is not being truthful.
What kind of damages can I recover in a medical leave retaliation lawsuit?
The damages in these types of retaliation cases are threefold. The most obvious is lost wages, both that which you would have earned had you not been fired, and from the time you are retaliated against until you are able to find replacement employment. If your replacement employment is at lower pay or with lesser benefits, then the difference between what you would have made and what you are making now can be included.
Much more significant is the emotional distress damages. It’s important that you see a psychiatrist to document the emotional distress that you are going through as a result of being retaliated against. At trial, emotional distress with a psychological expert to testify on your behalf is likely to be the largest part of your damages.
In cases where an officer or managing agent of the company was involved in the decision to retaliate against you, we may be able to get what are called punitive damages. Punitive damages are not based on any harm that you’ve suffered. They are to punish the company for engaging in malice, oppression or fraud, and to prevent future occurrences of retaliation for taking medical leave.
Those damages could be very significant because they are based on the value of the company. If you’ve been the victim of retaliation for taking medical leave, call an employment attorney right away and keep as much documentation to support your claims as you possibly can.
Can I sue for medical leave retaliation if I am a union member?
Union membership does not excuse the employer from violating the Fair Employment and Housing Act (FEHA). You don’t even have to go through the union’s grievance process, although you should, because that’s the best way to get your job back, if that’s your desired goal. If your goal is to sue for money, you don’t have to go through the union grievance process to sue for retaliation.
Can I sue for medical leave retaliation if my employer required me to sign an arbitration agreement?
We abhor arbitration agreements, so as a practice, we file lawsuits anyway. Our goal in doing so is to prove that the arbitration agreement that you were required to sign is both substantively and procedurally unconscionable. If we succeed in that, then the court will not enforce the arbitration agreement.
We file suit, the employer invariably files a petition to compel arbitration, and we fight the petition. If we win that fight, we are able to proceed with your lawsuit. If we lose the fight, we are no worse off than where we started.
Although arbitration is a less favorable venue for an employee, we will still have a pretty good chance, depending upon how egregious the employer’s actions are and what documentation there is to prove that their motives were false. Even in arbitration, in a clear cut case of retaliation for taking medical leave, an arbitrator should follow the law and find for the employee.
We represent employees.
If you believe your employer has retaliated against you for taking medical leave, we would like to hear from you. Wrongful Termination Law Group has more than a decade of experience supporting Los Angeles employees in their claims to seek compensation for retaliation at the hands of their employers.
Our employment law attorneys will listen to all the details of your situation, evaluate your case based on its merits, and work with you to create a plan to get your career and life back on track.
We offer a free initial consultation, so there is no cost to you in reaching out. And if we accept your case on contingency, this means there will be no cost to you until we win or settle your case. Please contact us today to see what we can do for you.