Legal Question in Employment Law in California

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against because of requesting or taking the leave, or you are refused accommodation, 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. Every case is dependent upon the facts, available alternatives and positions, financial and scheduling burden that accommodation would put on the employer, etc. You need to first try to negotiate with the employer regarding alternatives.

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� that is properly confirmed and documented by your doctor, 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.

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.

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 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.

Hello.

The answer to your question very much depends on the specific facts of your essential job duties and your employer's ability to provide the accommodations recommended. Generally, an employer has to provide reasonable accommodations (although not necessarily perfect accommodations or the accommodation that you elect) to an employee's condition unless such accommodations would constitute undue hardship on the employer's operation.

Even though I am not aware of the size of the medical facility you work at and your exact duties, my guess is that your employer should be able to accommodate your condition, or restructure/transfer you temporarily until you have a baby and are ready to return to work without restrictions.

On the more practical level, it might just be a good option for you to go on disability until you are able to return to work. The only reason to resist this would be if your wage loss as a result of not being employed or the difference between your wages and your disability payments is large enough to justify fighting this. Thanks, and feel free to follow up.

Arkady Itkin

San Francisco & Sacramento Employment Attorney

http://www.arkadylaw.com