Wrongful Termination During FMLA Leave in California — Fired While On Leave vs After Leave

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Last updated: August 2026 — Reflects Government Code § 12945.2 (CFRA), Government Code § 12940 (FEHA), Government Code § 12960 (filing deadlines), Government Code § 12965 (FEHA remedies), Labor Code § 1198.5 (personnel file), and federal FMLA (29 U.S.C. § 2601 et seq.). 1000Attorneys.com is a California State Bar Certified Lawyer Referral Service (LRIS #0128), American Bar Association Authorized Program, and LawHelpCA Verified Resource. Rated ★ 4.9 on Google. Authored by JC Serrano, Founder — LRIS #0128.

Being fired while on medical leave — or immediately after returning from it — is one of the most common wrongful termination patterns in California.

It is also one of the most legally powerful for the employee, because the connection between the leave and the termination is often self-evident and the employer's defenses are narrow.

The distinction between being fired during leave and being fired after return matters — but in ways that consistently favor the employee more than most people realize.

The Legal Framework — CFRA, FMLA, and FEHA Together

Three overlapping legal frameworks protect California employees from termination connected to medical leave. They operate simultaneously, not as alternatives.

Federal FMLA (29 U.S.C. § 2601) provides up to 12 weeks of job-protected leave per year for qualifying serious health conditions. It creates two distinct causes of action: interference claims — where the employer denied or impeded leave rights — and retaliation claims — where the employer took adverse action because the employee exercised leave rights. FMLA applies to employers with 50 or more employees.

California CFRA (Government Code § 12945.2) mirrors FMLA in many respects but is broader in critical ways — covering employers with five or more employees rather than 50, covering additional family members, and providing independent entitlements that in some cases do not run concurrently with FMLA. A California employee at a 12-person company has full CFRA rights and zero FMLA rights — the employer is too small for federal coverage.

FEHA (Government Code § 12940) provides the third and typically most powerful layer. If the condition that triggered the medical leave also qualifies as a disability — which most serious health conditions do under FEHA's broad definition — the employer has independent obligations: reasonable accommodation, engagement in the interactive process, and protection from discrimination based on the disability itself. A termination that ends leave also ends any possibility of the interactive process, which is itself a FEHA violation.

A termination connected to medical leave almost always implicates all three frameworks simultaneously, giving the employee multiple independent legal theories with separate remedial frameworks.

Fired While On Leave — The Strongest Case

Terminating an employee during the leave period itself is the most legally straightforward scenario. The timing makes the employer's position hardest to defend.

Under both FMLA and Government Code § 12945.2, an employee on approved medical leave retains full job protection for the duration of that leave. Terminating an employee during approved leave is presumptively an interference with leave rights — the employer has ended the employment relationship while statutory protection is expressly in force.

To defeat the interference claim, the employer must demonstrate one of two things: that the termination would have occurred regardless of the leave — such as in a genuine reduction-in-force that would have eliminated the position even if the employee had been at work — or that the employee was terminated for reasons entirely independent of the leave, such as serious misconduct documented before the leave began.

Both defenses are difficult when the adverse action occurs during the leave period itself. Courts apply heightened scrutiny to terminations implemented while an employee is on protected leave. The temporal overlap between the leave and the termination is circumstantial evidence of a connection the employer must affirmatively rebut.

When a position is suddenly restructured or eliminated during the leave period and then quietly refilled after the employee's departure, the restructuring defense collapses. The employer's claim that the position was eliminated for independent business reasons is directly contradicted by the decision to hire someone to do the same work shortly afterward.

Fired After Returning From Leave — Still Legally Powerful

Terminations that occur after an employee returns from leave receive less automatic protection — but they remain highly actionable when the facts support a connection to the leave.

Temporal proximity. A termination occurring within weeks or months of a leave return is suspicious circumstantial evidence of retaliatory motive. The shorter the interval between the return date and the termination, the stronger the inference. A termination on the first day back from leave is as suspicious as one that occurs during leave itself.

Performance documentation generated during absence. One of the most recognizable pretextual patterns in leave-related cases is performance documentation that materializes during the leave period — coaching notices, written warnings, or performance improvement plans awaiting the employee upon return.

An employer who generates negative documentation about an employee who is absent and cannot respond, improve, or address the concerns has potentially manufactured a termination basis. Courts find this pattern troubling and treat documentation generated exclusively during leave with significant skepticism.

Changed working conditions on return. An employee who returns from leave to find their role restructured, direct reports reassigned, schedule changed, or responsibilities stripped has been subjected to adverse conditions that must be independently justified. These changes constitute adverse employment actions under Government Code § 12940 regardless of how the employer characterizes them.

The reinstatement obligation. CFRA under Government Code § 12945.2 and federal FMLA both require reinstatement to the same or a comparable position upon return. An employer who offers a lesser position — lower pay, fewer hours, reduced responsibilities — upon return has violated the reinstatement obligation regardless of the stated reason.

The "Same Decision" Defense — And Why It Fails More Than Employers Expect

The most common employer defense in FMLA/CFRA termination cases is the argument that the termination would have occurred regardless of the leave.

Under the federal FMLA framework, an employer can avoid liability for a retaliation claim by demonstrating this defense with clear and convincing evidence.

Under FEHA's substantial motivating factor standard — which applies to disability discrimination and FEHA retaliation claims — the defense is even less effective. The employee needs only to show that the leave or disability was a substantial motivating factor in the decision, not the sole or primary factor.

In practice, the defense requires the employer to produce contemporaneous documentation — predating the leave — of the performance concerns, restructuring plans, or other legitimate reasons for the termination.

Documentation that emerges after the leave begins, or that was created in the window between the employee's leave request and the start of leave, is treated skeptically by courts and juries alike.

An employer who claims a restructuring necessitated the termination but cannot produce a restructuring plan that predates the leave notification faces a very difficult defense. The absence of pre-leave documentation is often dispositive.

The ADS Regulation Angle — Automated Systems and Leave-Related Terminations

One significant development in leave-related termination cases involves employers whose automated performance management systems generated termination recommendations during an employee's medical leave.

California's Automated Decision System regulations, effective October 1, 2025 under 2 Cal. Code Regs. §§ 11008.1–11008.4, prohibit employers from using automated systems that produce discriminatory outcomes — including outcomes that disadvantage employees with disabilities.

When a performance management algorithm continues to accumulate negative data — declining productivity scores, time-off-task accumulations, missed metrics — for an employee on approved medical leave, and that data contributes to a termination recommendation, the automated system has produced an outcome directly connected to the employee's medical condition and leave status. This is a FEHA ADS violation on top of the CFRA interference and FMLA retaliation claims.

Employers whose automated systems cannot account for approved medical leave status in their performance data — and who allow those systems to drive termination decisions for employees on protected leave — are creating compounding liability across multiple statutory frameworks simultaneously.

Key Distinctions — During Leave vs After Leave

Factor	Fired During Leave	Fired After Return
Presumption of interference	Strong — temporal overlap with protected leave	Weaker — depends on proximity and other evidence
Employer's same decision defense	Very difficult — must show decision was pre-leave	Possible — easier with pre-leave documentation
Performance documentation	Generated during absence — inherently suspicious	May predate leave — evaluated for pretext
Reinstatement violation	Yes — leave was not allowed to run its course	Yes if lesser position offered on return
FEHA disability claim	Yes if condition qualifies as disability	Yes if condition qualifies as disability
Damages	Full CFRA/FEHA remedies	Full CFRA/FEHA remedies — potentially shorter lost wage period

Damages Available in Leave-Related Wrongful Termination Cases

Damages Category	Legal Basis	Description
Lost wages	CFRA, FMLA, FEHA	Back pay from termination through resolution
Lost benefits	CFRA, FMLA, FEHA	Health insurance, retirement contributions, paid leave
Reinstatement	CFRA, FMLA	Right to same or comparable position
Emotional distress	FEHA	Compensable where termination caused demonstrable psychological harm — uncapped
Punitive damages	FEHA (Civil Code § 3294)	Available where employer acted with malice, oppression, or fraud
Liquidated damages	FMLA (federal)	Doubles back pay award for willful FMLA violations
Attorney fees	FEHA, CFRA	Mandatory for prevailing plaintiffs under Gov. Code § 12965

The liquidated damages provision under the federal FMLA — which doubles the back pay award for willful violations — is particularly relevant when the employer clearly knew the employee was on protected leave and terminated them anyway.

What to Do If You Were Fired During or After Medical Leave

Step 1 — Preserve all leave documentation. Save your leave approval notice, medical certifications, and all correspondence with HR about your leave status. These establish that your leave was protected and that the employer knew it.

Step 2 — Document the termination notice. Note the exact date, who communicated it, and what reason was given. If the stated reason is a restructuring or performance issue, note whether any documentation of that reason existed before your leave began.

Step 3 — Request your personnel file immediately. Under Labor Code § 1198.5, you have the right to inspect your personnel records within 30 days. Review it for any documentation generated during your leave — which you had no opportunity to address.

Step 4 — Document reinstatement failures. If you were offered a lesser position upon return — or never given the opportunity to return — document specifically how the offered position differed in pay, responsibilities, schedule, and working conditions.

Step 5 — File with the CRD promptly. CFRA retaliation and FEHA disability discrimination claims must be filed with the California Civil Rights Department within three years of the adverse action under Government Code § 12960. The federal FMLA civil claim has a two-year statute of limitations — three years for willful violations. Acting promptly preserves the full range of remedies.

For an estimate of what a leave-related wrongful termination claim may be worth, use our California Wrongful Termination Compensation Calculator. For a preliminary assessment of whether the facts support a claim, use our California Wrongful Termination Lawsuit Success Rate Checker. For the complete California wrongful termination framework, see our California wrongful termination guide.

Frequently Asked Questions

Can my employer fire me for performance reasons while I am on FMLA leave?

Potentially — but the employer must demonstrate that the performance decision was genuinely independent of the leave, with documentation that predates the leave request. Performance documentation generated during the leave period, or that suddenly emerges upon the leave's commencement, does not satisfy that burden. Courts apply heightened scrutiny to termination reasons that materialize during protected leave under Government Code § 12945.2.

What if my employer says my position was eliminated as part of a legitimate restructuring?

A genuine restructuring can be a defense — but only if the employer can demonstrate with contemporaneous documentation that the restructuring would have eliminated the position regardless of the employee's leave. A restructuring plan dated after the leave began, or a position that is quietly refilled after the employee's departure, does not support a genuine restructuring defense.

My employer offered me a different position when I returned from leave. Is that a violation?

It depends on whether the offered position is comparable within the meaning of CFRA and FMLA — equivalent pay, benefits, working conditions, shift, and geographic location. A position with lower pay, fewer hours, or substantially different responsibilities is not comparable and constitutes a reinstatement violation under Government Code § 12945.2.

Does California's CFRA provide stronger protection than federal FMLA?

Yes — in several respects. CFRA under Government Code § 12945.2 applies to employers with five or more employees, while FMLA requires 50. CFRA covers additional family members. And FEHA's disability discrimination framework — which applies alongside CFRA — provides uncapped emotional distress damages, punitive damages, and mandatory attorney fees under Government Code § 12965 that FMLA does not.

How do I know if my termination was because of my leave or for a legitimate reason?

The key indicators are timing, the existence of pre-leave performance documentation, whether similarly situated employees who did not take leave were treated differently, and whether the employer's stated reason is consistent across the EDD process, the CRD complaint, and civil litigation. Inconsistency in the employer's stated reason across these forums is one of the strongest indicators of pretext.

What is the deadline to file a leave-related wrongful termination claim?

Three years from the termination date to file a CFRA or FEHA complaint with the California Civil Rights Department under Government Code § 12960. Federal FMLA civil claims carry a two-year deadline — three years for willful violations. Do not wait — evidence in leave-related cases degrades quickly and employer records may not be preserved indefinitely.

DISCLOSURE 

This article is published by 1000Attorneys.com, a California State Bar Certified Lawyer Referral and Information Service, LRIS Certificate No. 0128, accredited by the American Bar Association and established in 2005. The information on this page is for general educational purposes only and is not legal advice. 1000Attorneys.com is not a law firm and does not provide legal representation. For legal advice about your specific situation, consult a qualified California attorney.