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Wrongful termination claims where employees on leave are fired

In my law practice, I often receive calls from employees inquiring about wrongful termination issues because they lost their job while on leave for health reasons. The employer, of course, may have legitimate reasons for terminating an employee on medical leave. The employer may need to fill the empty position to meet pressing work demands, or may be unhappy about the past work performance of the absent worker. While these motives are understandable, there are reasons why firing an "on leave" employee should be avoided if possible.

These reasons are: 

  • If the employee is on a FMLA or CFRA protected leave, the termination may be illegal;
  • The termination may foster a claim for disability discrimination or failure to accommodate a disability;
  • Regardless of whether the termination is lawful or not, firing an on leave employee raises his/her suspicion of possible illegal motives behind the termination which could only encourage the worker to search for some reason to challenge it and assert a claim of wrongful termination.

Communication with the on leave worker and past documentation of the reasons for termination are prudent strategies to consider when an employer is contemplating the discharge of a worker who is on leave. If possible, arrange to meet with the employee face to face to explain the potential termination or, better still, wait for the employee to return from leave before addressing the issue.

Contact Freeland Law APC for a free 30-minute consultation with Michael Freeland, experienced employment lawyer located in La Mesa, California and serving San Diego County residents, including East County communities like the cities of El Cajon, Santee, Lakeside and Alpine.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.