Can you be demoted while on a medical leave of absence from work?

People usually ask

• How to ask for a demotion?
• Can my employer replace me while on medical leave?
• How long does an employer have to hold your job for medical leave?
• …

Currently, a majority of employees in California struggle with work-life balance. An individual may be striving for that promotion at work, finding time to go to their kid’s soccer game, praying they will finally pay off their student loans, and still finding a moment to hit the gym so they can stay in good health. The average Californian tries to do it all. But

• What happens when a serious illness gets thrown into the mix for the employee himself or an immediate family member?
• What if an employee is injured and needs surgery that will require time off from work to recover? and how to tell the boss you need time off for surgery.
• What if you take a leave of absence and as a result, you are fired?
• How to ask for a leave of absence 
• Can you be demoted for being off sick? 
• What to do when you are demoted?

Many laws have been passed over the years to protect workers from various causes. Even though many incidents have occurred in the workforce, Congress was able to pass these laws. However, it took several years to get some laws passed. The Family and Medical Leave Act (FMLA) was only one of many laws that faced rejection after rejection before finally being passed in 1993. The Family and Medical Leave Act finally gave protection to families and women after nine long years.

Congress passed the Family and Medical Leave Act on February 5, 1993. The law allows eligible employees to take 12 weeks of unpaid time within 12 months for various reasons, such as the birth, adoption, or serious health condition of a family member or their health condition. In some cases, employees may be allowed to take 26 weeks of unpaid time in 12 months.

A leave of absence resulting in a termination might mean you were fired for an illegal reason. An Employment Lawyer is the type of lawyer who handles these types of situations. If you are thinking you may need an Employment Attorney, here are some points to consider that you may not have known.

7 things you didn’t know about medical leave of absence from work

• The number of employees is important
• Take care of family
• leave up to 12 weeks
• Get the best protection the law provides
• An employer can give the employee more time off than the law requires
• The employee can’t be replaced or demoted
• The employee can’t be fired or demoted because you took a leave of absence

let’s start at the top.

1. The number of people you work with may be important

It seems odd, but the number of people employed by the organization or company you work for may be a significant factor in whether you have a leave of absence claim. There is a 50/75 rule which means there need to be 50 employees at your job site, or 50 employees within a 75-mile radius of your job site. For example, you may work for a company that only has 20 employees in your building, which means you don’t meet the 50-employee standard. However, if the company has another branch 25 miles away from your job site and has 30 employees on-site, that may suffice to meet the requirement.  Here, the 50/75 rule is likely met because the branch is within the 75-mile radius requirement, and adding the branch’s employees equals 50 employees total.

It is important to note that the 50/75 rule does not apply to an employee who takes pregnancy disability leave.

2. Being sick or injured isn’t the only type of recognized leave

Aside from taking time off for their illness or injury, an employee may take leave to care for a member of the family who is seriously ill. Also, an employee may take a leave of absence because they are pregnant or for the initial receiving of an adopted or foster child.

3. Your leave may last up to 12 weeks

As an employee, you may have the right to take up to 12 work weeks for your leave of absence. The 12 workweek leave is permitted in a 12-month time frame. Keep in mind though, that your employer has some discretionary power over how the 12 months are measured.  For example, an employer can decide to measure it as a calendar year instead of measuring the 12- months starting on the day the employee took their leave.

4. You get the best protection the law provides

Multiple statutes overlap and protect an employee’s right to a leave of absence. Although multiple statutes covering leave complicate the process, the good news is that an employee who has taken or needs to take leave is entitled to utilize the statute that provides the best protection and most rights for their particular circumstances.

5. Your employer can give you more time off than the law requires and you can hold them to it

Your employer has to meet certain standards the law sets out for providing leave to employees. But, if your boss is generous, he or she is entitled to exceed those standards and you may be able to enforce what they promised. For example, Brad is an employee at a marketing agency and takes medical leave to have corrective surgery on his shoulder. Even though he was entitled to 12 weeks of medical leave by law, his employee handbook states that he has 14 weeks. After he took 14 weeks to leave for his surgery his boss replaced him and told Brad they no longer had a position for him at the agency. Here, even though by law was only entitled to a 12-week leave, because he was promised 14 weeks in the employee handbook, he may have a claim against his boss for violating the company’s standard.

6. In most situations, you can’t be replaced or demoted

If you take a medical leave of absence that is covered by the law, you are entitled to have your original position restored to you or another equal position. For example, Tammy was a full-time employee at a multinational package and delivery company working in the financial accounting sector.  She took a leave of absence to care for her child because he was suffering from a serious illness. Upon Tammy’s return, the head supervisor of the department told Tammy he had to replace her and now she must work in customer service as a customer service representative. Tammy was devastated by this news because this meant a huge pay cut for her in comparison to her position in finance. In addition, she was overqualified for the new position. Here, not only was Tammy replaced, but she was moved to a position that was considered a demotion from her original position and it was not equal in the payroll department. Tammy might have a claim against her employer for violating her right to take a leave of absence to care for her son.

There is an exception if the employee taking leave or did take leave was in a significant position such as a CEO or was high-up in management. In a situation such as this, an employer may not be required to hold the employee’s original position.

7. You can’t be fired or demoted because you took a leave of absence

After requesting or insisting on leave of absence or taking a leave of absence, your boss can not demote you or fire you because you took the leave. Mistreating you, singling you out, demoting you, or transferring you after you put a request in for taking a leave of absence may indicate retaliatory behavior.  This means your boss is not allowed to punish you or make your job more difficult specifically because you took a leave of absence. This may be considered retaliation which is prohibited by law in California.

Women had to risk their health before 1993’s FMLA became law. Women lost their jobs in childbirth and when their children were seriously ill. Men can lose their jobs too if they have to take time off from work to care for their sick children, or to care for themselves if they are very ill. Although the FMLA was approved in 1993, it took nine years to pass and provide employment security for families.

The Family and Medical Leave Act means that women don’t have to put their lives at risk by returning to work immediately after giving birth. Men also no longer have to fear losing their jobs if it is necessary to leave to care for their sick family members. Employers cannot terminate employees while they are on unpaid leave. This law gives job security.

The Family and Medical Leave Act was passed over two decades ago. It is the only law that prevents employers from firing employees for taking time off work for weeks if they are eligible and have a valid reason. It is the only law that allows for work-life balance. The FMLA had a huge impact on the country and provided job security for thousands of people, but it is not enough. The United States is the only industrialized country that doesn’t offer paid maternity leave or paid days off, as compared to other industrialized nations.

Workers who work five days per week in the UK have 28 days of paid leave, while the United States has 0 days. Most employers offer 10 days of paid vacation. Some countries around the world offer more paid vacations and days off than the United States. This is why the Family and Medical Leave Act, which was passed over two decades ago, is still not sufficient for American employees. Even though the act allows employees to take weeks off without having to risk losing their jobs, many employees don’t use those days off when they are most in need. Why? Because they are not paid. Even if they are necessary, many employees won’t take days off work. Many Americans are living on the streets and can’t afford to take days off work. They risk missing out on their monthly paychecks, so they have to keep showing up to work to care for their health or help a loved one.

The Family and Medical Leave Act will reach its full potential if the United States mandates a set number of paid days. They can take the time they need without risking their jobs and don’t have to worry about how they will pay for the month. Families will have fewer financial worries and be able to enjoy the FMLA benefits. This will allow them to benefit from the true purpose of FMLA, which is to provide job security and to help with work-life balance. Most of us are responsible for multiple responsibilities.

The Family and Medical Leave Act is a great activity that was passed to secure jobs and has had a huge impact on the workforce over the past 20 years. Although thousands have been able to reap the benefits of this act, there are still many who are not able to take advantage of it. It’s time to move forward and correct the problems that hold back FMLA-eligible employees who are unable to receive the benefits of the act due to financial reasons. Many families don’t have enough money to open a savings fund. Financial reasons should not be a reason for excluding any family. We Americans must leap forward and move in the right direction. All families should be able to participate in the Family and Medical Leave Act if they are eligible.

All families should be able to participate in the Family and Medical Leave Act if they are eligible. Financial reasons should not stop them from exercising a right they were granted more than two decades ago. It is time for a revolution and everyone deserves to be included in this country. It is what makes our nation great.

In taking all of these points into account, if you have an employment situation that involves issues with you taking a leave of absence, you should reach out to an Employment Attorney.

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