Leaves of Absence/Retaliation for Taking a Leave of Absence

Heather Conger

The Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide many workers with the right to take up to 12 weeks of job-protected leave for their own serious health condition, to care for a family member who has a serious health condition, or to care for a newborn child or a child who has recently been adopted by or placed in foster care with the worker. Under FMLA, you can take time off to care for your child, parent or spouse. Under CFRA, you can also take time off to care for your registered domestic partner or the child of your domestic partner. Your employer can require medical certification to verify that the injury, illness, or condition qualifies as a "serious health condition," but your employer cannot inquire about your specific diagnosis or require you to disclose other private medical information.1

Even if you don't meet the qualifications for FMLA or CFRA, you may still be entitled to another form of leave, such as paid family leave, disability leave, pregnancy leave, military leave, or time off for victims of domestic violence.

Your employer cannot fire you for taking leave, interfere with your ability to take leave, deny a valid leave request, or retaliate against you for exercising your right to take leave. In general, your employer must give you back the same job when you return from leave. However, there are some limited exceptions.

Siegel LeWitter Malkani has extensive experience representing employees who were fired for taking or requesting a leave of absence, including:

  • Representing a commissioned salesman who was fired after taking a leave of absence for knee surgery. After his leave of absence, his management team claimed lack of confidence in his sales abilities and fired him. Siegel LeWitter Malkani was able to litigate the case and obtain a substantial settlement.
  • Representing a janitor, also a reservist with the U.S. Army Reserves, who was fired by his employer after being called to active duty. His employer terminated his employment for "unauthorized absences." His claims included failure to reemploy him after his military leave in violation of federal law (USERRA, 38 U.S.C. S 4301 et seq.) and California law (Cal. Military & Vet. Code S 394 et seq.)
  • Representing many employees fired or laid off for taking pregnancy and/or family leave, who return from their leave and find their position eliminated or that they have been fired for a variety of pretextual reasons.

If you believe that your employer has wrongfully denied your request for medical leave or you feel that your employer has retaliated against you for requesting such leave, please contact Siegel LeWitter Malkani.


1In order to be eligible for FMLA/CFRA leave, you must meet certain criteria:
  • You must work for an employer who has 50 or more employees within a 75-mile radius. So, for example, if you work at a small store with only a few other employees BUT your employer has several other stores within a 75-mile radius of where you work and the total number of employees working at all the stores in that 75-mile radius equals 50 or more, you may be eligible for FMLA/ CFRA leave. On the other hand, if your employer only has 48 employees working within a 75-mile radius of where you work, you are not covered by FMLA or CFRA.
  • You must work for your employer for 12 months before you become eligible to take FMLA or CFRA leave.
  • You must have worked at least 1250 hours in the 12 months prior to taking FMLA or CFRA leave.
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