Legal Question in Medical Leave in California

The FMLA does not protect you against layoffs that would have happened regardless of your leave. For example, the act says "Nothing in this section shall be construed to entitle any restored employee to--(B) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave."

So, if layoffs would have happened anyway, say because company performance has been poor, you can be laid off even if you are on leave.

I provide information about the law designed to help people safely

manage their own legal needs. But legal information is not the same as

legal advice -- the application of law to an individual's specific

circumstances. I do not know all the facts of your case, and do not

represent you. Although I strive to make sure the information I

provide is accurate and useful, I recommend you consult a lawyer who

can learn the details of your case more completely, to insure that the

information I provide, and your interpretation of it, is appropriate

to your particular situation.

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against, then you can consider legal claims.

If your CA employer has at least 5 employees, they can not fire you because you are pregnant, must allow you to continue working as long as you are able, must 'reasonably' accommodate your disability, and must allow up to 4 months of unpaid pregnancy leave under FEHA.

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA/CFRA maternity/medical leave when you are unable to work [or must care for an immediate family member] because of a �serious health condition�, continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider.

If you qualify for both, you get both. If you are out longer than those guarantees, they can fire you.

Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.

Overriding those stated protections, just because you are on leave does not mean you can�t be terminated. You have no special exemption against lay offs due to business reasons. A company in downsizing can lay off a FMLA leave person, as long as they can show they aren�t targeting �because of the leave�. They are simply risking claims if they do.

If your company has a policy requiring they hold your job for you for a specific period of time while on disability, that is enforceable.

Now, if they violated those rules, contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years.