Leave of Absence: What’s the Risk? Can I Lose My Job?
Updated August 15th, 2018
Occasionally an employee suffers a serious illness or injury or has to take time off to care for a family member with a serious illness or injury. Sometimes employees even become pregnant and have babies. Since employers generally terminate employees that don’t go to work, one of the first things the employee may think about is, “How can I take time off, without losing my job?”
Taking A Leave Of Absence Without Losing Your Job
Under certain situations, federal and California laws give an employee the right to take an extended period of time off of work and the employer must let the employee return to their job with the same level of pay and benefits. Under the federal law Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and California’s Fair Employment and Housing Act (FEHA), eligible employees can take an extended leave from work without fear of losing their job or benefits.
The FMLA and CFRA are very similar, with a few exceptions. Under FMLA and CFRA, eligible employees can take up to 12 weeks of leave during a 12 month period, for the following reasons: The employee has a serious health condition and is unable to work, to care for an immediate family member with a serious health condition, or the birth or adoption or foster care placement of a child.
A “serious health condition” under FMLA and CFRA is an illness, injury, impairment, or physical or mental condition that involves either: Inpatient care, overnight stay in a hospital, hospice, or residential medical care facility and any subsequent treatment in connection with such inpatient care. Or, continuing treatment by a health care provider, which includes examinations, evaluations, a course of prescription medication and therapy.
FMLA leave for treatment for substance abuse by a health care provider may be taken. On the other hand, absence because of the employee’s use of the substance abuse, rather than for treatment, does not qualify for leave—treatment for drug or alcohol addiction is covered, missing work because of a hangover is not.
What Does Not Qualify As A Serious Health Condition?
- The common cold.
- The flu.
- Routine medical or dental appointments.
- Ear ache.
- Headache other than a migraine.
- Stomach ache.
Under FMLA, disability due to pregnancy is also covered. Although CFRA provides leave for the employee’s own serious health condition, it does not extend to an employee’s own disability caused by pregnancy. For disability due to pregnancy under California law, FEHA fills the gap.
These leave of absence laws require an employer to maintain the health insurance benefits at the same level for the employee that he or she had before taking the leave. If the employee does not return to work, the employer under certain circumstances may require the employee to reimburse the employer for the cost of the medical health insurance premium. Once the employee returns from leave, the employer is required to restore the employee to the same position with the company, or an equivalent position with equivalent pay, benefits and terms of employment.
FMLA also provides for leave for an employee for a qualified exigency arising out of the fact that the spouse, child, or parent of the employee is on active duty or has been called to active duty in the Armed Forces. It also provides for an employee leave to care for a service member.
Understanding Leave Of Absence Laws
Taking a leave of absence under federal and California state laws can best be understood by this chart:
|An employee’s own serious health condition||✓||✓|
|Care of a newborn (baby bonding)||✓||✓|
|Care of a child, spouse/parent’s serious health condition newborn||✓||✓|
|Newly adopted child or foster care placement||✓||✓|
|Care of a Domestic Partner||✓|
|Care of a Domestic Partner’s Child||✓||✓|
|Military Personnel Caregiver Leave||✓|
|Qualifying Exigency Leave||✓|
Unfortunately, FMLA and CFRA leaves of absence do not protect all workers. Leave of absence laws under FMLA and CFRA apply only to government employees and private companies employing 50 or more employees. In order to be eligible for the leave under FMLA and CFRA, an employee must have been employed by the covered employer for at least 12 months on the date the leave is to start, and must have worked for at least 1,250 hours during the previous 12 month period.
A leave of absence provided by FMLA and CFRA are up to 12 workweeks in a 12 month period. The time does not have to be used all at once. If needed, it can be used in blocks. FMLA provides for a 26 weeks of leave in a single 12-month period to care for a service member.
Leave Of Absence For Pregnancy
Under FEHA, eligible pregnant employees are those employed by employers of five or more employees whether they are employed full time or part time. No length of time of employment is required. Under FEHA, pregnancy disability leave can be up to four months. Because CFRA and FEHA are separate, it is possible for a woman to take up to four months of disability pregnancy leave under FEHA and then 12 weeks of CFRA leave after the birth of the baby.
Under FEHA, a woman is “disabled by pregnancy” if, in the opinion of her health care provide, she is unable because of pregnancy to work at all or is unable to perform one or more of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons. She is also considered disabled if she is suffering from severe “morning sickness” or needs to take time off for prenatal care. In addition, she is considered “disabled by pregnancy”, if she need to take time off for any of the following:
- Postnatal care
- Bed rest
- Gestational diabetes
- Pregnancy-induced hypertension
- Post-partum depression
- Loss of end of pregnancy
- Recovery from childbirth, loss or end of pregnancy
Under the FMLA and CFRA, with few exceptions, you are not required to be paid for the time off. But, the employer may ask that you take paid time first before using the required leave. If the leave is for the employee’s serious health condition, an employer may require, or an employee may elect, to use accrued sick leave. Like FMLA and CFRA, for pregnancy disability under FEHA, leave can be paid or unpaid. The woman can use accrued but unused vacation and sick leave, if any. The employee may qualify, however, for six weeks of wage replacement benefits and can apply directly to the Employment Development Department.
What Happens After My Leave Of Absence Is Over?
Generally speaking, once your FMLA and CFRA leave is over, you must go back to work or you are subject to termination by your employer. There may be an exception—If the health issue that caused you to go on FMLA and CFRA leave in the first place continues to prevent you from going back to work.
Under the Americans with Disabilities Act (ADA) and other provisions of the FEHA, the additional leave can be a reasonable accommodation. While FMLA and CFRA provide a finite amount of unpaid time off, the ADA and FEHA do not. It’s important to note that FEHA applies to all California employers with five or more employees. So, just about every employer is subject to the reasonable accommodation requirement.
The only reason to deny leave requested as an accommodation is because it would be an “undue hardship for the employer”. This means that a qualified individual with a disability must be allowed additional leave time beyond the twelve weeks permitted under the FMLA and CFRA and the four months under FEHA in the case of pregnancy, so long as that additional leave time would not constitute an undue hardship on the employer.
Being Discouraged From Taking A Leave Of Absence
It is an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under these laws. In addition, it is unlawful for an employer to retaliate against an employee for exercising their right to take a leave of absence. If the employee is subject to an adverse employment action or terminated, the employee is entitled to back pay, future lost wages, loss of benefits, interest, and reimbursement of attorneys’ fees and costs.
If you feel like you have been denied a leave of absence or have been punished for taking or wanting to take a leave of absence, even terminated, you need to talk to an attorney that is knowledgeable about worker’s rights and employment law. Many employment law claims have a short statute of limitations, which means that you are not entitled to a recovery if you wait too long. The longer you wait the more likely it is you will not be compensated or the amount you are truly owed will be reduced.
The only way to know for sure is to contact us. Initial consultations and evaluations for employment related violations are confidential and free, so there is no cost to you to find out if you have a valid concern and are entitled to compensation.
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