Can You Be Fired If I Need to Take Care of a Family Member?

Many employees need to take off to take care of a spouse, a child, or a parent due to health issues. If a relative is ill or needs special attention, it can be a difficult question – do you risk your job to care for your loved one.  Fortunately, federal law and California law do provide some help for employees who qualify.

The federal Family and Medical Leave Act (FMLA)

The FMLA is a federal statute that grants eligible employees (employees with enough work credits) who work for covered employers (generally, larger private and public employers) the right to take time off to care for a specific relative. The time off/leave is unpaid. Your job should be protected while you take time off. You should also keep the same group health insurance coverage – as if you hadn’t taken leave – provided you pay the premiums.

If you qualify, you can take off:

• 12 work weeks each year for the birth and care of a newborn or the adoption or foster care placement for a child – during the first year after the birth, adoption, or placement.
• 12 work weeks each year for a spouse, parent, or a child who has a serious health condition.
• 12 weeks each year for any emergencies due to your spouse, child, or parent – if your relation is a covered member of the military on “covered active duty”
• 26 work weeks each year to care for a covered member of the military who has a serious illness or injury

Covered employees cannot fire you for taking your unpaid leave. They also cannot retaliate against you for asserting your federal FMLA rights.

California’s Family Medical Leave Act (FMLA)

California also has its own FMLA. The law is comparable but not identical to the federal FMLA.

In California, employees who qualify can take family or medical leave for 12 weeks. The leave is unpaid.  Your job should be protected. The same 26-week period of leave applies for employees who need to take care of a covered serviceman.

To be eligible, you must have worked 1,250 (about 31.25 40-hour work weeks) during the prior 12 months.

A big difference between the California FMLA and the federal FMLA is that the California FMLA applies to employers with 5 or more employees in one location. The FMLA applies to employers with 50 or more employees within a 75-mile radius. Another crucial difference is that the federal FMLA generally applies to a spouse, a parent, and minor children or dependents. The California FMLA applies to spouses, registered domestic partners, children (of a spouse or a domestic partner), parents and parents-in-law, siblings, grandchildren, and grandparents.

Associational Discrimination

California courts have developed a doctrine of “associational discrimination” that also helps employees care for certain family members who have physical or mental difficulties.

The background of association discrimination is that federal and California law protects employees from discrimination based on their race, sex, age, religion, pregnancy, or mental or physical health. The courts have essentially extended the discrimination laws to include employees who do not qualify on their own for discrimination protection but who are “associated” with a spouse or significant other who does have a health difficulty. For example, the courts in California protect an employee from being fired because a significant other has HIV – even though the employer believes that the HIV creates a risk for the employee and other workers.

In 2015, the California Court of Appeals ruled that a healthy employee will be protected under the state’s discrimination laws if:

• The healthy employee is “associated” with a person who does have a disability
• The associated person needs the help of the employee.

The Court ruling means that covered employers must grant health employees “reasonable accommodation” to be able to help the disabled associated person.

The appellate case, Luis Castro-Ramirez v. Dependable Highway Express, involved an employee who informed the employer that he needed time off to help provide dialysis for his disabled son. The employee was granted permission to help his son at first. When a new supervisor begin managing the employee, the employee was fired for refusing to accept work shifts that would not have enabled the father/employee to help his son.

The appeals court’s reasoning was based on California’s Fair Employment and Housing Act (FEHA) and not on the federal Americans with Disabilities Act.

There are likely to be additional cases to clarify the definition of the types of disabilities covered, when a relationship is considered close enough, and other related factors. For now, if you are caring for someone in your family who has health problems that require that you take time off from work, your employer may be violating FELA if they fire you.

The California courts will likely review many issues including:

• The cost to cover an associated employee in a company health plan
• Concerns about other workers contracting an infectious disease
• The degree of attention required to help the associated person who has a disability
• What accommodations are considered reasonable and which accommodations are not reasonable

To discuss your rights under the federal FMLA, the California FMLA, and California’s reasonable accommodations requirement for disabled associate (generally close relations), please call the Miracle Mile Law Group now. You can call us at (888) 244-0706 or contact us for a FREE consultation. We’ll explain whether you can hold your employer liable for terminating your employment.