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

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Updated April 2026 to reflect current CFRA and FMLA interference and retaliation standards, California Supreme Court precedent on leave-related terminations, and the interaction between federal FMLA and California's stronger CFRA protections.

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

It is also one of the most legally nuanced. Whether the termination occurred during the leave or after it, whether it was framed as a layoff or a performance issue, and whether the employer can demonstrate the decision was truly independent of the leave all determine what legal claims are available and how strong they are.

The distinction between being fired while on leave and being fired after returning from leave matters — but in ways that favor the employee more than most people realize.

The Legal Framework — CFRA, FMLA, and FEHA Together

Three separate legal frameworks protect California employees from termination connected to medical leave — and they operate simultaneously, not as alternatives.

Federal FMLA (29 U.S.C. § 2601 et seq.) provides up to 12 weeks of job-protected leave per year for qualifying serious health conditions and 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.

California CFRA (Gov. Code § 12945.2) mirrors FMLA in many respects but is broader in critical ways — covering more family members, applying to smaller employers, and providing independent entitlements that do not run concurrently with FMLA for CFRA-only qualifying reasons. CFRA applies to employers with five or more employees, compared to FMLA's 50-employee threshold.

FEHA (Gov. Code § 12940) provides the third and often 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 parallel FEHA obligations: reasonable accommodation, the interactive process, and protection from discrimination based on the disability itself.

A termination connected to medical leave almost always implicates all three frameworks simultaneously.

The combination of FMLA/CFRA interference, FMLA/CFRA retaliation, and FEHA disability discrimination provides multiple independent legal theories — each with its own remedial framework — arising from the same set of facts.

Fired While On Leave — The Strongest Case

Being terminated during the leave period itself — before the employee has even returned to work — is the most legally straightforward of the two scenarios. The timing makes the employer's position most difficult to defend.

Under both FMLA and CFRA, 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 the statutory protection is expressly in force.

To defeat the interference claim, the employer must demonstrate one of two things. First, that the termination would have occurred regardless of the leave, for example, in a genuine reduction-in-force that would have eliminated the employee's position even if they had been at work.

Second, that the employee was terminated for reasons entirely independent of the leave, such as serious misconduct, for instance, that the employer can document with evidence that predates the leave.

Both defenses are difficult to sustain 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 that the employer must affirmatively rebut.

When the termination involves a position that is suddenly restructured or eliminated during the leave period — and then quietly refilled after the employee's departure — the restructuring defense collapses. Our article on was your job eliminated as a cover for wrongful termination covers how courts evaluate pretextual position eliminations in detail.

Fired After Returning From Leave — Still Legally Powerful

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

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

Performance documentation generated during absence. One of the most recognizable pretextual patterns in leave-related termination 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 not at work — and therefore cannot respond, improve, or address the concerns — has potentially manufactured a termination basis under circumstances that courts find troubling.

Changed working conditions on return. An employee who returns from leave to find their role restructured, their direct reports reassigned, their schedule changed, or their responsibilities stripped has been subjected to adverse conditions that must be justified independently of the leave. Our article on retaliation after requesting FMLA leave covers the specific patterns that courts recognize as post-leave retaliation.

The reinstatement obligation. CFRA and FMLA both require reinstatement to the same or a comparable position upon return from leave. An employer who offers a lesser position — lower pay, fewer hours, reduced responsibilities — upon return from leave has violated the reinstatement obligation regardless of the stated reason for the change.

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

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

This defense, when it succeeds, does not eliminate liability for CFRA interference but limits the remedies available.

Under the federal FMLA framework, an employer can avoid liability for a retaliation claim by demonstrating the same decision 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 termination, not the sole factor.

In practice, the same decision 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.

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 not just inconvenient — it is often dispositive.

The ADS Regulation Angle — When Automated Systems Fired During Leave

One of the more recent and significant developments 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, at 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, TOT 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 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.

Our article on California's new AI hiring and firing laws explains the ADS regulatory framework in detail.

Real Cases — Leave-Related Wrongful Terminations in California

1. Termination during medical leave, Los Angeles healthcare employer A medical billing specialist was approved for 10 weeks of CFRA leave for a serious cardiac condition. In week six of her leave, she received a termination letter citing a restructuring that eliminated her position. Her role was not refilled, but her duties were distributed among two colleagues who were hired as contractors six weeks after her termination.

The CFRA interference claim was supported by the termination during active protected leave. The restructuring defense failed because the duties were redistributed rather than eliminated, and because new contractors were brought in to perform essentially the same work shortly after the termination.

The FEHA disability discrimination claim was added because her cardiac condition qualified as a disability, and the termination during leave prevented any interactive process from being conducted.

2. Performance improvement plan on return, Bay Area tech company A software engineer returned from 12 weeks of CFRA leave for a back surgery to find a 30-day performance improvement plan waiting on his desk — citing productivity metrics from the three months before his leave. He had received positive performance reviews in each of the prior two years.

The CFRA retaliation claim focused on the PIP as an adverse employment action implemented upon his return. The two-year clean record before the leave, the PIP's reliance on metrics from a pre-leave period he could not retroactively address, and the absence of any PIP discussion before his leave commenced were all circumstantial evidence of retaliatory motive.

He was terminated when he did not meet the PIP targets within 30 days — a termination that the civil court claim characterized as the predictable end of a retaliatory process that began with the leave.

3. Position eliminated during leave, San Diego manufacturer A production manager took eight weeks of PDL following a pregnancy complication. During her leave, Walmart restructured her department — eliminating her specific manager role and redistributing her responsibilities among two existing supervisors. Upon return, she was offered an hourly production role at substantially reduced pay.

The PDL interference claim established that the restructuring had been implemented during her protected leave period. The employer's restructuring plan — produced in discovery — was dated two weeks after her PDL began, undermining the claim that it predated her leave.

The FEHA pregnancy discrimination claim addressed the broader pattern of adverse treatment connected to her pregnancy.

4. Automated system termination during CFRA leave, Inland Empire warehouse A warehouse associate on approved CFRA leave for a knee surgery continued to have her absence recorded as TOT time in the employer's automated productivity system.

The system generated a final warning and termination recommendation based on accumulated TOT and declining productivity scores — scores that reflected her absence rather than any actual performance deficiency.

The CFRA interference claim was clear — she was terminated during approved protected leave. The FEHA ADS violation claim was added because the automated system had produced a termination recommendation directly attributable to her disability-related leave, without any human review of her leave status.

The combination of CFRA interference and ADS regulation violation produced significant combined exposure.

5. Hostile return conditions, Northern California financial services A loan officer returned from 10 weeks of FMLA leave for cancer treatment to find his client accounts reassigned to two junior colleagues and his target origination quota increased by 40%. He was terminated three months later for failing to meet the new quota.

The FMLA retaliation claim was supported by the account reassignment — an adverse action that occurred immediately upon his return — and the quota increase, which made meeting performance targets structurally more difficult than before his leave.

The FEHA disability discrimination claim was added because cancer qualifies as a disability and the employer had failed to engage in any interactive process before implementing the changed working conditions.

The California Wrongful Termination Lawsuit Success Rate Checker illustrates how courts evaluate these combined fact patterns.

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 upon 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 smaller lost wage period

Damages Available in Leave-Related Wrongful Termination Cases

The remedies available in FMLA/CFRA wrongful termination cases are comprehensive, and the addition of FEHA disability discrimination claims significantly expands the damages framework.

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, Tameny	Compensable where termination caused demonstrable psychological harm
Punitive damages	FEHA (malicious conduct)	Available where employer acted with malice, oppression, or fraud — no cap
Liquidated damages	FMLA (federal)	Doubles back pay award for willful FMLA violations
Attorney's fees	FEHA, CFRA	Available to prevailing plaintiffs

The liquidated damages provision under the federal FMLA — which doubles the back pay award for willful violations — is particularly relevant in cases where the employer clearly knew the employee was on protected leave and terminated the employee anyway. A willful violation finding significantly increases the damages exposure beyond the underlying lost wages.

Steps to Take If You Were Fired During or After Medical Leave

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

• Document the termination notice carefully. Note the exact date of the termination, 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.

• Request your personnel file immediately. Under Labor Code § 1198.5, you have the right to inspect your personnel records within 30 days. Reviewing your file for any documentation generated during your leave — which you had no opportunity to address — is essential to evaluating the pretextual nature of the termination basis.

• File a CRD complaint promptly. CFRA retaliation and FEHA disability discrimination claims must be filed with the California Civil Rights Department within three years of the discriminatory act. The federal FMLA civil court claim has a two-year statute of limitations — three years for willful violations. Acting promptly preserves the full range of remedies.

• Note the reinstatement failure. If you were offered a lesser position upon return — or if you were never given the opportunity to return at all — document specifically how the offered position differed from your original role in terms of pay, responsibilities, schedule, and working conditions.

Frequently Asked Questions

Can my employer fire me for performance reasons while I am on FMLA leave? Potentially — but the employer bears the burden of demonstrating that the performance decision was genuinely independent of the leave. 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.

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.

Does California's CFRA provide stronger protection than federal FMLA for leave-related terminations? In several respects, yes. CFRA applies to employers with five or more employees, while FMLA requires 50. CFRA covers additional family members that FMLA does not. And FEHA's disability discrimination framework — which applies alongside CFRA — provides uncapped punitive damages and attorney's fees that FMLA does not. California employees typically have stronger combined protections than the federal framework alone provides.

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.

Talk to a Vetted Employment Attorney — Free Referral

A termination connected to medical leave — whether it occurred during the leave or after your return — implicates some of the most powerful protections in California employment law.

The combination of CFRA interference, FMLA retaliation, and FEHA disability discrimination creates a multi-claim framework with substantial remedies. The pretextual justifications that employers use — restructurings, performance issues, position eliminations — are well-recognized by California courts and well-addressed by the evidentiary framework these cases develop.

Attorneys in our network handle FMLA and CFRA wrongful termination cases throughout California, including cases involving position eliminations during leave, hostile return conditions, and automated system terminations during protected leave periods.

DISCLOSURE

This article is intended for general informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this content. 1000Attorneys.com is a State Bar of California Certified Lawyer Referral and Information Service (LRS #0128), not a law firm. For advice specific to your situation, request a free referral to a vetted California employment attorney.