Legal Question in Medical Leave in California
On SDI/FMLA in CA & Laid Off
I recently went out on SDI/FMLA a week before I gave birth. The day after I gave birth I found out I had been laid off by my employer (a very large US-based company w/ whom I have 8+ years tenure). They essentially eliminated 9 of the 12 FTE's within my division & moved the 3 remaining ee's to a new division (but essentially they have the same job/title/position as before). My company offered severance but has made not mention of me being 'protected'. I've read on other posts that if the company had planned to lay me prior to my going on FMLA and can prove they made the decision regardless of if I was pregnant or not that they were in the clear - however I didn't know if there was any 'wrong doing' since the position technically still exists within the company.
Additionally the standard company maternity leave policy was 90 days (where they supplemented CA SDI and paid me in full for 90 days). HR is now saying that they will not honor that and essentially will no longer supplement CA SDI after it runs out after 10 weeks.
I'm just trying to understand if there's any wrong doing in these two instances.
2 Answers from Attorneys
Re: On SDI/FMLA in CA & Laid Off
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 the employee is 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.
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.
Now, if they violate those rules, contact me for the legal help you'll need.
If they can show the lay off was business justified and necessary, then regardless of pregnancy, you can be laid off. They risk 'discrimination' claims though, since it 'smells' bad.
Re: On SDI/FMLA in CA & Laid Off
Based on what you described, the company did not violate the law. Basically, terminating an employee who is "protected" is only unlawful if the reason for termination is being a member of the protected class. Here, assuming that it's true that the decision to lay off was made before request for FMLA, and the fact that other employees were also terminated, means that you were not singled out because of your condition.
The other issue is, of course, the fact that they knew you were pregnant way before you requested FMLA because pregnancy is an obvious condition. The knew that you were going to request leave as every other woman. Whether choosing you for a lay-off was motivated by your condition but "masked" with the reasoning you received is a question of facts and evidence available.
Thanks,
Arkady Itkin
San Francisco & Sacramento Employment Lawyer
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