Using your leave under the Family and Medical Leave Act and the California Family Rights Act is never an easy choice. Even so, the choice is made for you because you either need to care for your own serious health condition or to care for a family member.
One benefit is that at least your job is safe for those 12 weeks, right?
It may come as a shock if you are laid off during that leave, and you will wonder whether it qualifies as a “wrongful termination” under the law.
Both FMLA and CFRA prohibit discrimination and retaliation
Both FMLA and CFRA prohibit your employer from discriminating or retaliating against you for utilizing these laws for your benefit. This means that you cannot be fired, harassed, demoted or receive any negative employment action because you requested or took your entitled FMLA or CFRA leave.
Was my layoff illegal?
The presumption is no, but that presumption is rebuttable. This rebuttable presumption exists because neither FMLA nor CFRA give those who use it greater rights than employees that do not use it.
Employees on such leave are not immunized from legitimate layoffs and other legitimate business decisions that may negatively affect the employee on leave. In other words, if you would have been laid off had you not been on leave, then being laid off when you are on leave is likely not illegal wrongful termination.
Legitimate business reasons
The key here is that the layoff must be based on a legitimate business reason unrelated to your FMLA or CFRA leave. And, it is on your now-former employer to prove that your layoff had nothing to with your entitled leave.
For example, this can be done with documentation that shows the employer is restructuring or reorganizing, and your position, along with other similarly situated employees were impacted.
Similarly, there could be proof that there was some economic downturn or some other financial hardship that impacted the business that caused them to make such a negative employment decision that affected you and other similarly situated employees.
The burden is on the employer
Obviously, if you are the only person that was laid off, the burden of proving it was unrelated to your leave will be extremely high. Though, if your entire department was laid off, the burden will likely be much less. Nonetheless, the burden is on your employer.