[COLUMN] Termination during approved medical leave may be illegal

Is employee’s travel an abuse of medical leave?

Q: I HAD surgery and my employer approved the doctor-prescribed 6 weeks of medical leave. While on leave, I travelled to the Philippines to stay with family members who could assist me while I recovered. When I came back to the U.S. I received several messages from my employer demanding I go back to work right away. The employer apparently learned that I had gone out of the country, thought I went on vacation, and became upset. I called the employer and was told since I did not return to work as instructed, I had resigned. Is this right?  

A: No, the facts that you narrated do not support a lawful termination. Your employer approved your doctor-prescribed medical leave. If the employer had questions about your continuing need for reasonable leave accommodation, the employer had a duty to engage you in interactive process.

Under California law an employer may not terminate an employee based on disability, medical condition, or pregnancy. Disability includes physical disability, mental disability or a medical condition. If a disabled employee is unable to perform work duties, the employer must engage in a timely interactive process. This means that the employer must communicate with the employee to determine if reasonable accommodation is needed or continues to be needed.

There are those who believe that some employees abuse the leave process by applying for medical leave while they actually go on vacation. However, the vast majority of employees who file medical leaves do so because it is necessary. The issue now is if an employee files medical leave, and then leaves the country while on leave, did the employee then forfeit their right to medical leave?

The answer is, not necessarily. One may incorrectly assume that someone who is ill or disabled should not be able to travel or go on vacation. For example, an employee who is recovering from surgery may spend their recovery time sitting and reading by the beach in Hawaii and still comply with doctor’s orders to rest. However, if the employee was found hiking Mt. Fuji based on social media postings, then there could be a reasonable inquiry into whether the employee was abusing the leave process. In other words, simply because an employee who went on medical leave travelled out of the country on an apparent vacation, does not necessarily mean the employee lied about their need for leave accommodation.

Consider the following case reported by the Daily Journal and other news media:

Oscar Mayorga worked for Porterville Unified School District as a custodian for 18 years. He was diagnosed with diabetic peripheral neuropathy. In May 2017, due to complications from diabetes, his medical provider deemed it appropriate for him to go on medical leave. He submitted his doctor’s note to the employer and he went on medical leave for five weeks.

During his medical leave, Mayorga visited his brother in Nicaragua, who also had diabetes. The employer learned that Mayorga was out of the country. The employer tried to contact him to demand that he return to work within less than 24 hours. However, Mayorga did not know the employer was trying to contact him. When Mayorga did not report back to work within five days, the employer deemed him absent without leave. He was then considered to have resigned from his employment.

Mayorga sued the employer for wrongful termination, claiming that his termination violated the California Family Rights Act (CFRA), which allows employees to take protected leave because of their disability or medical condition. Mayorga argued that the employer objected to Mayorga leaving the country while he was on medical leave, and thus considered him absent without leave. However, Mayorga’s note from his doctor demonstrated he couldn’t work and needed the medical leave.

The case went to trial. After two weeks, the jury returned a verdict in favor of the employee, awarding him loss of earnings in the amount of $242,000, future loss of earnings of $78,000, emotional distress damages of $576,000, and future non-economic damages of $384,000. His total jury award was $1,280,000.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, is the recipient of PABA’s Community Champion Award, and is a Presidential Awardee for Outstanding Filipino Overseas in 2018.]

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