Can I fire an employee who’s on medical leave?

Under California law, your employees are entitled to take unpaid medical leave for any number of reasons – from childbirth to severe illness. But what does such leave guarantee employees in terms of job security?

California is an “at-will” employment state. This means that as an employer, you can terminate your employees at any time and without any reason – provided it’s on a legal basis. When an employee is on leave, what job protections are you required to guarantee them?

California’s family and medical leave

The California Family Rights Act Policy (CFRP) is similar to the Family Medical and Leave Act (FMLA). Under both laws, eligible employees can take up to 12 weeks of unpaid leave for the following reasons:

  • To care for a newborn child
  • To care for a newly adopted child or a recently placed foster child
  • To take care of an immediate family member with a serious health condition
  • To take care of their own serious health condition

Pregnancy disability Leave

Pregnancy disability is a physical or mental condition related to pregnancy or childbirth. Qualifying employees are entitled to up to 16 weeks of Pregnancy Disability Leave (PDL). Examples of pregnancy disability include:

  • Morning sickness
  • Prenatal or postnatal care
  • Bed rest
  • Gestational diabetes
  • Post-partum depression
  • Pregnancy-induced hypertension

Termination while on family or medical leave

California has taken significant strides to protect employees from unfair termination during family or medical leave. However, this does not mean you have to retain sub-par employees no matter what. You can still fire an employee if there is evidence that the employee had performance issues before they took leave, among other reasons. Evidence of downsizing or a reduction-in-workforce decision before they took leave is also grounds for legal termination.

Your employees have certain rights to job security when they are on leave. However, when other factors – such as employee or business performance – limit your ability to keep them on, you may have legal options to terminate.