Wrongful termination and pregnancy discrimination?

I was unable to work due to pregnancy related complications. I filed for FMLA and PDL and reported the days that I missed due to my complications. My case is still pending and just waiting on the certification from my doctor. I have until the 30th the return everything for my claim. Is my employer within their rights to fire me for attendance while I have an ongoing claim for FMLA and PDL. My doctor said that I would only be able to do 4 days a week for 6 hours. I let HR know that I filed the claim and it’s pending but she said the separation has already been complete so she couldn’t do anything.

Asked on January 25, 2019 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

1) If you miss work without (when you miss them) having FMLA or PDL leave or paid time off (PTO) you earned to cover the absence, you may be terminated. The law does not allow employees to miss work or require employers to retain them unless they have medical leave or PTO for the missed days.
2) If your job is normally full time (e.g. 35 - 40 hours per week), you can be terminated if you only work 24 hours, of if it's normally five days/week, you can be terminated if you only work four, unless again you use FMLA or PDL leave, or PTO, to cover any missed days or hours. Employers must make "reasonable accommodations" to pregnancy, but a reasonable accommodation allows you to do your full job; working only, say, 60% (24 of 40 hours) of your normal job is not reasonable for the employer, because that would mean that 40% of the work they hire you to do does not get done or they have to hire someone else to cover for you
3) The employer does not need to wait for the outcome of the claim, since that outcome may not be beneficial to you, anyway. If you miss work now without being able to cover the missed hours, you may be terminated.

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