Medical leave (CFRA/FMLA) discrimination and harassment
There are many reasons you may need to take a leave of absence from your job. Perhaps it’s a happy reason, such as a pregnancy or plans to adopt a child. If this is the case, Mazel Tov! Sometimes, it’s not so happy occasion, like you need to take time off to care for yourself or a loved one due to a serious medical condition or disability. If this is the case, we hope for a speedy recovery for you or your family member.
Whatever the reason, you may be worried about whether or not you can return to the workplace after your leave of absence. You may be worried that your boss will unfairly and illegally discriminate against your or harass you because of your leave. If your boss starts to bully you when you return from a protected leave of absence, that is retaliation and illegal! You have rights to take leave and you have certain protected reasons for retaining your job in the state of California.
You have rights to take medical leave under the Federal Medical Leave Act (“FMLA”) and/or the California Family Rights Act (“CFRA”).
Under federal or state law, as long as your employer has at least 50 employees and you have worked full time for the company for at least one year, you have a right to take 12 weeks of medical leave per year in order to either: 1) care for your own serious medical condition; 2) care for the serious medical condition of your child, spouse, or parent; to bond with a newborn or adopted child; or 4) in order to take care of a family member’s active military duty.
Your employer must maintain your position or similar position when you return from leave. Being a caregiver or sick person gives you rights.
Your employer must maintain your position or similar position when you return from leave. Being a caregiver or sick person gives you rights. You can ask for flexibility in how, when, and where you do your job. You can also ask to be treated the same as your co workers.
If your employer refuses to let you take leave or bullies you when you return to your job, that’s illegal. Call us if your employer has denied you leave, retaliated against you for taking or requesting leave, or harassed you because of your leave. We can help!
You have rights to take disability leave under the Americans with Disabilities Act (“ADA”) and/or the Fair Employment and Housing Act (“FEHA”).
If you were diagnosed with a serious medical condition or injury, you often need to take time off for treatment and recovery. You may be entitled to take a leave of absence as a reasonable accommodation for your condition. Reasonable accommodation simply means a job modification that allows your to perform the essential functions of your job. In Jensen v. Wells Fargo Bank, the California Supreme Court found that an accommodation is reasonable if it does not create an undue hardship for the employer.
I’ve handled dozens of cases in which an employee was wrongfully terminated because the boss decided the companywasonly required to provide 12 weeks of leave.
This is the part where it gets tricky to determine what length of absence is considered “reasonable.” Certainly, the length of time the law provides for CFRA and FMLA leave should be considered “reasonable.” However if you are relying on disability leave laws, it is because you either don’t qualify for CFRA or you’ve already exhausted your CFRA leave.
So, how do you determine what amount of time off is “reasonable?” The answer is argued on a case by case basis, where it's determined how important your job is and the ease which your duties can be replaced. However, an employer is never required to provide you with an indefinite leave of absence, so be careful to instruct your doctor to provide a note requesting a definite time period for which your leave will end.
I’ve handled dozens of cases in which an employee was wrongfully terminated because the boss decided the company was only required to provide 12 weeks of leave. Call us if your employer has denied you leave, retaliated against you for taking or requesting leave, or harassed you because of your leave. We can help!
You have rights to take Pregnancy Disability Leave.
FMLA and CFRA guarantee your right to bond with your baby after birth. But does that mean you have to continue to work until the day you go into labor? The thought of that probably just sent shivers down your spine. But don’t worry! You still have rights to leave before your baby is born.
California recognises that if you are no longer able to work, perform one or more of your essential job functions, or are unable to perform these job functions without undue risk to yourself or your baby, you have a right to take leave under the Pregnancy Disability Leave Law (“PDLL”).
If your boss starts to bully you when you return from a protected leave of absence, that is illegal retaliation.
Under PDLL, your employer must provide you with up to four months of leave for a disability due to an employee’s pregnancy, childbirth, or related medical condition. This includes time off for prenatal and postnatal care, severe morning sickness, gestational diabetes, hypertension, preeclampsia, bedrest, childbirth, postpartum depression, loss or end of pregnancy, and recovery from childbirth or end of pregnancy.
In order to enforce your rights to PDLL, you must provide a medical certification form to your employer. You can obtain this form through your employer or health care provider. If neither your doctor or your employer have this form, fear not! It’s not the form that's important, it's the information provided on the form. You will need to provide your employer a description of the reason for the leave, the date you need to take leave, and the expected duration of the leave.
It’s important to note that PDLL and CFRA run consecutively. That means that if you have had a difficult pregnancy and need to take four months of leave under PDLL, you still have a right to take your 12 weeks of CFRA leave to bond ith your baby. Thus, you could be entitled to up to 29 ½ weeks of leave!
I’ve handled dozens of cases of pregnant women who were harassed and wrongfully terminated because of their difficult pregnancy. Call us if your employer has denied you leave, retaliated against you for taking or requesting leave, or harassed you because of your leave. We can help!
You have a right to other leaves of absences.
There are many other protected leaves of absences that you may be entitled to take. They occur less frequently, so I will only briefly mention them here. If your employer has denied you leave for any of these reasons, bullied you, or retaliated against you for taking any of these types of leave, give us a call. We can help!
- You have a right to take time off to attend court. Whether you are a victim of a crime, the immediate family member of the victim of a crime, or are subpoenaed as a witness to a crime or civil proceeding, you have a right to an indefinite period of leave.
- You have a right to take time off to care for your sick child. If your employer provides you sick time, you are entitled to take one half of your sick days to care for your sick child.
- You have a right to take time off for your child’s school activities. You may be entitled to up to 40 hours of leave per year to particpate in school activities with your child. So, you don’t have to worry about missing your child’s brilliant performance as a broccoli floret in the kindergarten play.
- You have a right to take time off for school appearance leave. You are entitled to time off to attend your child’s school suspension hearing.
- You have a right to take time off for domestic abuse/sexual assault leave. You are entitled to an indefinite leave of absence to seek services or medical attention as a result of domestic violence or sexual assault. The files can wait. You take care of you.
- You have a right to take time off for military service leave.The Uniformed Services Employment and Reemployment Act of 1994 (USERRA) requires your boss to allow you to take leave if you are a member of the reserve corps of the U.S. armed forces, the National Guard, or the National Militia of up to 5 years while engaged in military duty.
- You have a right to take time off for drug and/or alcohol treatment.You can attend voluntary alcohol and/or drug rehabilitation programs as long as it doesn’t create an undue hardship on your employer.
- You have a right to take time off for organ donation. If you are going to donate an organ, not only will you get props in heaven, your employer is required to provide you with up to one month leave in a year from your job. This does not run concurrently with FMLA or CFRA, so you could actually be entitled to about 16 weeks of leave in order to recover from your good deed.
- You have a right to take time off for bone marrow donation. This is the same as organ donation, except you are provided an extra week, not a month, of leave in order to recover from your good deed.
- You have a right to take time off in you are a volunteer firefighter, reserve peace officer, or emergency rescue personnel. You have a right to take leave to perform emergency duty.
- You have a right to take time off to vote. You have a right to a maximum of two hours of paid time off to vote.
Is your boss treating you in an illegal way?
Have you been denied leave? Are you currently on leave and are afraid of the retaliation that may occur when you return to work? You have rights to help you transition to work after staying at home. Do you want to return part-time or full-time? Or do you want to return with a different set of duties? Talk to us to determine your options.
Harassment can cause health issues, which may lead toother complications beyond what triggered your initial leave request.
Your employer may not want to respect your rights. If your employer is harassing you because of your leave, we’re here to help. Being harassed is wrong. You’re facing a horrible situation: you’re scared to speak up and lose your job, but you can’t bear the unfair treatment, either.
Are you being treated unfairly or bullied?
You don’t have to endure a hostile work environment. In fact, being quiet sometimes causes bad bosses to take advantage of you or unfairly fire you. We can help to fight your boss’s illegal treatment. And we can do so while also protecting your right to keep your job.
Harassment can cause health issues, which may lead to other complications beyond what triggered your initial leave request. If your condition has become complicated for whatever reason, you may need someone to fight for you.
Is your boss bullying you because you reported discrimination or harassment?
Perhaps you already suspect that you are being unfairly treated because of your leave. Maybe you told your boss or someone else that you believe your employer is treating you wrongfully because of your leave. You were very courageous to speak up! You have the right to feel safe and to have job security even after complaining.
Retaliation based upon your complaints of discrimination or harassment is illegal. Your boss may say that you weren’t being discriminated against based you took leave. But even if your employer can prove that, it’s never fair to discriminate against you because you spoke up. If you feel you’ve been retaliated against because of your complaints, let us help you.
How can I prove my boss harassed or discriminated against me because I took leave?
The appellate court decided in the case of Sanchez v. Swissport, Inc. that to prove your case, you only need the judge or jury to believe that you had a medical condition or a disability and you boss wrongfully terminated you or harassed you because you took leave to care for that condition. If you have witnesses and documents, of course it’s much easier to prove your case. However, if you don’t have these things, don’t feel discouraged. We have handled many cases where someone has been discriminated and harassed because they took protected leave, but no one was around to see it and it wasn’t in writing. In fact, it’s pretty common for bad bosses to wait until a time when you’re alone before they harass you.
If you’ve been treated differently because you took or requested protected leave, that’s wrong. You deserve to be treated with respect.
We can help you fight for justice.
We want to do everything to make things easier for you during and after this time. We’re here for you!
Please make an appointment for a free consultation in our Newport Beach office. You can contact us by email or phone. We want to help.