Posted on February 24th, 2025
The short answer is NO without some serious risks.
Running a business in California isn’t for the faint of heart. Between taxes, regulations, and the ever-changing landscape of employment laws, keeping everything in compliance can feel like walking a legal tightrope.
A major pitfall? Handling employees who take medical leave.
Let’s set the scene: One of your key employees has been out for weeks on medical leave. They are good at their job but they are expensive and sometimes a real pain to have around. After being out for a short period, you notice that your business is doing just fine without them. You’ve found a cheaper alternative and it’s kind of nice not to have their difficult personality around. In short, it turns out this is not a key employee after all and your business is much better now that they are on medical leave. Hallelujah! Let’s terminate and move on. Well not so fast. You may be buying yourself a brand new lawsuit to go along with that new AI that just replaced your employee.
The Basics: Medical Leave Laws in California
California takes employee protections seriously, and medical leave is no exception. Two major laws govern this area:
- Family and Medical Leave Act (FMLA) – A federal law that gives eligible employees up to 12 weeks of unpaid, job-protected leave per year for serious health conditions, pregnancy, or to care for a sick family member. Applies to businesses with 50 or more employees.
- California Family Rights Act (CFRA) – A state law similar to FMLA but covering businesses with just five or more employees (California likes to go that extra mile).
Both laws ensure that employees can take medical leave without fear of losing their jobs—but does that mean you can never fire an employee on leave?
When Is Termination Legal?
Here’s the deal: If an employee is on legitimate medical leave under FMLA or CFRA, you can’t fire them just because they’re on leave. That would be retaliation, and California courts don’t take kindly to that. In fact, if it is done within 90 days of the employee returning from leave, there is a rebuttable presumption that it is retaliation.
But, here’s where it gets interesting—being on medical leave doesn’t grant an employee total immunity from termination. You can let an employee go if:
- You were already planning to fire them before they took leave (document this well).
- You’re restructuring, and their position is legitimately being eliminated.
- They engaged in misconduct or violated company policy (even while on leave).
- Their leave expired, and they’re unable to return to work (though reasonable accommodations must be attempted first).
WARNING! WARNING! WARNING!
YOU WILL LIKELY BE SUED ANYTIME YOU TERMINATE AN EMPLOYEE ON MEDICAL LEAVE UNLESS THEY DO NOT RETURN TO WORK.
A Cautionary Tale: When Termination Backfires
Picture this: A small business owner, let’s call him Dave, runs a successful restaurant in Los Angeles. One of his managers, Sarah, goes on medical leave for surgery. While she’s out, business slows down, and Dave starts to feel the pressure. He decides to let Sarah go, thinking it’s justified since he needs to cut costs.
Sarah, however, isn’t just any employee—she knows her rights. She files a wrongful termination and discrimination lawsuit, arguing that her medical leave was the reason behind her termination. Now, Dave is tangled in legal fees, potential damages, and a public relations nightmare.
The lesson? Firing an employee on medical leave is risky unless you have a clear, well-documented, non-discriminatory reason. (EVEN THEN THERE IS STILL RISK)
What You Should Do Before Making a Termination Decision
If you’re considering terminating an employee on medical leave, follow these steps to protect yourself:
- Review Your Policies – Ensure your handbook aligns with FMLA, CFRA, and ADA (Americans with Disabilities Act) regulations.
- Document Everything – If termination was already in the works before the leave, have clear records showing why.
- Consult a Lawyer – No, really. A quick consultation can save you thousands in potential lawsuits.
- Consider Reasonable Accommodations – If the employee is asking for extra leave beyond FMLA/CFRA, you may be required to provide it as an accommodation under disability laws.
- Communicate Carefully – Avoid saying anything that could be misinterpreted as retaliatory.
Final Thoughts: Play It Smart
Medical leave laws in California are strict, and mistakes can cost you big time. The best approach?
Plan ahead, document everything, and consult legal counsel before making any big moves.
Need help navigating these complex laws? As an employer defense attorney in Los Angeles, I specialize in helping business owners like you stay compliant and protected.
Reach out before a small mistake turns into a big legal headache.
FAQ
1. Can I legally fire an employee while they are on medical leave?
It depends. You cannot fire an employee because they are on medical leave—that would be illegal retaliation. However, if you have a legitimate, well-documented reason unrelated to their leave (e.g., misconduct, layoffs, or prior termination plans), termination may be lawful. But even then, there is still significant legal risk.
2. What laws protect employees on medical leave?
Two major laws govern medical leave in California:
- Family and Medical Leave Act (FMLA) – Applies to businesses with 50+ employees and provides up to 12 weeks of unpaid, job-protected leave.
- California Family Rights Act (CFRA) – Covers businesses with just five or more employees and offers similar protections as FMLA.
These laws ensure that employees can take leave without fear of losing their jobs.
3. What if my business is doing fine without the employee? Can I replace them?
Even if your business runs smoothly without them, firing them just because you found a cheaper or easier replacement is risky. If they can prove that their termination was related to their medical leave, you could face a lawsuit.
4. When is it safe to terminate an employee on medical leave?
While termination is always risky, you may have a valid defense if:
✅ The termination decision was made before they took leave (with documentation).
✅ You are eliminating their position due to legitimate business restructuring.
✅ They violated company policy or engaged in misconduct.
✅ Their leave has expired, and they are unable to return to work (after considering reasonable accommodations).
5. How soon after medical leave can I terminate an employee?
Be extra cautious if terminating an employee within 90 days of their return. California law assumes retaliation in these cases, and the burden is on you to prove otherwise.
6. What are the risks of firing an employee on medical leave?
🚨 HIGH LAWSUIT RISK! Any termination while an employee is on leave is likely to trigger a wrongful termination or retaliation claim. Even if you have a legitimate reason, you’ll need strong documentation to defend against legal action.
7. What should I do before deciding to terminate?
✔️ Review your company policies and ensure compliance with FMLA, CFRA, and ADA.
✔️ Document any performance or business-related reasons for termination.
✔️ Consult a lawyer before making a final decision.
✔️ Consider whether reasonable accommodations (e.g., extended leave) are required.
✔️ Communicate carefully and avoid language that could be seen as retaliatory.
