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Can an Employer Terminate an Employee While on Disability Leave Due to a Work Injury?

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Injured workers are often concerned about taking disability leave. Even with rights guaranteed by California and federal law, workers harbor doubts about whether they can truly exercise their rights without any retribution. Employees are right to be concerned; employers are not always the most scrupulous when they feel they are losing money on an employee, and they may engage in underhanded tactics to protect their bottom line. California workers are, however, guaranteed certain rights, including appropriate disability leave. Below, we discuss whether an employer can fire an employee while the employee is on leave. If you need assistance with a workers’ compensation claim or if you have been denied your legal rights as a California worker, call a knowledgeable Riverside labor and employment attorney at Ochoa & Calderon for assistance.

Federal and California Laws Ensure Protected Medical Leave

The federal Family and Medical Leave Act (FMLA) guarantees covered employees up to twelve weeks of leave in a 12-month period for family and medical reasons. Workplace-related disability is certainly a covered reason for leave. Likewise, the California Family Rights Act (CFRA) also requires certain employers (those with 50 or more employees) to provide covered employees with 12 weeks of leave in a 12-month period for one of a number of reasons, including the employee’s disability.

Covered leave under FMLA and CFRA can be unpaid, but under both laws, workers’ jobs are protected. Employers must restore workers to the same or a substantially similar position (in terms of duties, pay, responsibility, etc.) upon completion of their leave. Workers cannot be terminated during leave, they cannot be demoted, and their pay cannot be reduced (although they may not be paid during leave). If their disability was caused by a work-related incident, then they are guaranteed workers’ comp benefits even while on leave. If their job is no longer available when their leave is up, then they must be offered an equivalent job. If a worker is fired, demoted, or otherwise subjected to an adverse employment action while on protected leave, then they can bring a claim for wrongful termination against their employer.

Termination After Protected Leave

If a worker takes more than 12 weeks of leave, however, they can be terminated. FMLA and CFRA do not guarantee indefinite leave, even for disability. Your employer cannot fire you for exercising your legally-protected leave, nor can they fire you in response to filing a workers’ compensation claim–doing so would qualify as wrongful termination and/or retaliation. But, after your protected leave expires, they can terminate you for general reasons, provided you are an at-will employee.

After a work-related injury, workers are entitled to appropriate workers’ compensation benefits; they are not guaranteed their job back. Workers who are unable to return to their previous job due to a permanent partial disability may be entitled to a supplemental job displacement voucher, which is meant to support retraining to find new employment.

Employers who do choose to terminate an employee for taking extended leave must, however, be wary of the federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA). Employers cannot terminate an employee because of a disability if the employee is willing and able to return to work to the same job, a modified job, or another job that can be essentially performed with or without reasonable accommodation.

Finally, if you are out of work and receiving workers’ compensation when you are terminated, you might have additional protections, including a claim that you were terminated in retaliation for filing a claim or fired because you are on workers’ comp. Even if the firing is lawful, you can still continue to receive workers’ compensation benefits for the duration of your disability.

Protect Your Rights, Your Health, and Your Career

For help securing the workers’ compensation benefits you are owed or pursuing claims of discrimination, retaliation or harassment at work in Southern California, call Ochoa & Calderon to discuss your case with an experienced and effective California labor and employment lawyer. Call 951-901-4444 in Riverside or 844-401-0750 toll-free throughout Southern California.

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