Few terminations feel more obviously wrong than being let go while you are out on medical leave, or weeks after you asked for a modified schedule. And yet these cases are rarely as simple as the timing makes them look, because employers know the timing looks bad and prepare accordingly. The reason on paper is almost never your leave. It is a reorganization that happened to reach your position, a performance issue that happened to surface, or a role that was “eliminated” while you were out.
What separates a strong case from a weak one is usually evidence you can gather in the first few weeks — much of which disappears if you wait.
First: Which Protections Actually Apply to You
This matters because the answer determines what you have to prove.
California Family Rights Act (CFRA)
Covers employers with 5 or more employees — a threshold lowered dramatically in 2021, which means many small-business employees who assume they have no leave rights actually do. Provides up to 12 weeks of job-protected leave for your own serious health condition or to care for a family member, if you have worked for the employer at least 12 months and 1,250 hours in the prior year.
Federal FMLA
Covers employers with 50 or more employees within 75 miles. Same 12 weeks, similar eligibility requirements.
Pregnancy Disability Leave (PDL)
Government Code §12945 — up to four months for disability caused by pregnancy, childbirth, or a related condition, at employers with 5 or more employees. No minimum length of service. PDL runs separately from CFRA, so an employee can be entitled to PDL and then CFRA baby-bonding leave on top of it.
FEHA disability protections
This is the broadest and most commonly overlooked. Independent of any leave statute, the Fair Employment and Housing Act requires employers with 5 or more employees to:
- Refrain from discriminating based on disability or medical condition
- Provide reasonable accommodation — Government Code §12940(m)
- Engage in a timely, good faith interactive process — Government Code §12940(n)
Two points worth emphasizing. First, a finite leave of absence can itself be a reasonable accommodation under FEHA, even after CFRA and FMLA leave is exhausted. Employers that terminate automatically the day leave runs out are on shaky ground. Second, failure to engage in the interactive process is its own violation — you can prevail on that claim even if the accommodation you wanted would ultimately have been unreasonable.
California’s definition of disability is also broader than the federal one: a condition need only limit a major life activity, not substantially limit it, and conditions that are episodic or in remission count.
The Evidence That Matters Most
1. Proof of what you told them, and when
The employer’s most common defense is that it never knew you had a disability or never received a proper accommodation request. Close that door.
Preserve every leave request, doctor’s note, medical certification, FMLA/CFRA form, HR portal submission, and email. If a request was made verbally — to a supervisor in a hallway, which is how most of them happen — follow up in writing that day: “Confirming our conversation this morning about needing to adjust my schedule for my medical appointments.” That one email converts a disputed conversation into a document.
You do not need magic words. You are not required to say “accommodation,” cite FEHA, or disclose your diagnosis. Notifying the employer of a medical condition and a need for some change is enough to trigger their obligation.
2. The interactive process record — or the absence of one
The law expects a genuine, ongoing dialogue. Document what actually happened:
- Did anyone respond to your request at all, and how quickly?
- Was there a meeting? Who attended? What was discussed?
- Did they ask for medical information, and did you provide it?
- Did they propose any alternatives, or just say no?
- Did they ever explain why an accommodation would be a hardship?
Silence is evidence. An employer that received your note and simply never engaged has a serious problem under §12940(n) — and unanswered follow-up emails from you prove it cleanly.
3. The timeline
Build a dated chronology: when you disclosed the condition, when you requested leave or accommodation, when leave began, when each adverse action occurred, and when you were terminated.
Watch for the tells: a performance issue first documented after your request; a reorganization announced while you were out; a replacement hired or posted before your leave ended; your duties reassigned permanently rather than temporarily.
4. Your performance record from before
Every positive review, bonus, and commendation predating your leave. A long record of strong performance followed by an abrupt problem is the backbone of a pretext argument.
5. Comparators
Employees who did not take leave or request accommodation and were treated better under comparable circumstances — including employees whose positions were not eliminated in the same “restructuring.”
6. Reinstatement evidence
CFRA and FMLA generally guarantee return to the same or a comparable position. If you were brought back to a materially worse job — less pay, fewer hours, lower status, a different location — document the differences precisely. That is a violation in itself, not just a disappointment.
7. What the employer told the EDD
Their statement to the unemployment agency is an early, often careless articulation of the reason. If it contradicts what they said to you or what they say later in litigation, that inconsistency is valuable.
The Employer’s Defenses — and What Undercuts Them
“The position was eliminated in a reorganization.”
Legitimate reductions in force happen. Look for whether anyone else was let go, whether the duties survived under a new title, whether a requisition was posted during or shortly after your leave, and how the selection criteria were documented.
“Performance.”
Check what exists in your personnel file — request it in writing under Labor Code §1198.5, which generally requires production within 30 days. Write-ups created after the fact are common, and document metadata often reveals when they were really generated.
“Undue hardship.”
This is the employer’s burden to prove, and California sets a high bar tied to the employer’s overall size and resources. Vague assertions of inconvenience do not carry it.
“They couldn’t perform the essential functions of the job.”
Compare the written job description to what the role actually involved day to day. Employers frequently recast marginal duties as essential once litigation is anticipated.
Practical Steps in the First Two Weeks
- Request your personnel file in writing under Labor Code §1198.5, and your wage records under §226.
- Get the termination reason in writing while it is fresh.
- Collect your medical documentation — certifications, work-status notes, and correspondence with the employer about your restrictions.
- Preserve your own emails and texts. Do not download the company’s confidential files; that creates a counterclaim and moves the case onto your conduct.
- Do not sign a severance agreement without review. If you are 40 or older you generally have 21 days to consider it and 7 days to revoke.
- Note the deadline. FEHA claims generally require a complaint to the California Civil Rights Department within three years, then suit within one year of the right-to-sue notice.
What You Can Recover
Lost wages and benefits, past and future; emotional distress damages; punitive damages where the employer acted with malice, oppression, or fraud; attorney’s fees as a prevailing plaintiff under FEHA; and reinstatement in appropriate cases.
Talk to an Employment Attorney
If you were fired during or shortly after medical leave, or after asking for an accommodation, the evidence that decides your case is mostly in emails, HR files, and dates — and it is easiest to secure right now.
Contact Cohen, Cohen & Cohen for a free consultation. Learn more about our wrongful termination practice, or read what to do if you’ve been wrongfully terminated.
This article is general information about California law, not legal advice, and does not create an attorney-client relationship. Eligibility thresholds and deadlines vary; consult an attorney about your specific situation.
