Updated January 16, 2026
FMLA Retaliation in California: What Your Employer Can't Do in 2026
FMLA retaliation happens more often than many California employees realize, despite clear legal protections designed to prevent employer backlash. Taking medical leave shouldn't put your job at risk, yet many workers face subtle or overt punishment for exercising their federally protected rights.
Unfortunately, many employees don't recognize retaliation until it's too late. A sudden performance review after returning from leave, unexpected schedule changes, or being passed over for promotion might all signal that your employer is penalizing you for taking time off. The consequences can be devastating—loss of income, career setbacks, and significant stress during an already challenging time.
This guide examines what constitutes illegal FMLA retaliation in California, how employers might attempt to disguise it, and most importantly, what steps you can take to protect yourself before, during, and after your leave. Understanding these protections isn't just helpful—it's essential for safeguarding your career and financial stability when health concerns require you to take time away from work.
Understanding FMLA and Retaliation in California
The federal Family and Medical Leave Act (FMLA) exists alongside California-specific protections, creating a safety net for employees facing health challenges. However, many workers find themselves facing unexpected consequences after exercising these rights. Let's explore exactly what these protections entail and how retaliation manifests in California workplaces.
What is FMLA and who qualifies
FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave within a 12-month period for qualifying family and medical reasons. This federal protection ensures your employer cannot terminate your employment while you're addressing serious health concerns.
To qualify for FMLA protection, you must meet specific criteria:
- You've worked for your employer for at least 12 months (these don't need to be consecutive)
- You've completed at least 1,250 hours of service during the 12 months before your leave
- Your employer has 50 or more employees within a 75-mile radius of your worksite
Qualifying reasons for FMLA leave include your own serious health condition, caring for a family member with a serious health condition, bonding with a new child through birth, adoption, or foster placement, and certain qualifying exigencies related to a family member's military service.
How FMLA interacts with FEHA and CFRA
While FMLA provides federal protections, California offers additional safeguards through the California Family Rights Act (CFRA). Although similar in many respects, CFRA actually provides broader coverage in several important ways.
First, CFRA applies to employers with just 5 or more employees, significantly expanding protection compared to FMLA's 50-employee threshold . This means many California workers qualify for state protections even when federal FMLA doesn't apply.
Additionally, CFRA's definition of "family member" extends beyond FMLA to include grandparents, grandchildren, siblings, and domestic partners . This broader definition allows employees to take protected leave to care for a wider circle of loved ones.
In most situations, CFRA and FMLA leaves run concurrently—meaning they count against your entitlement under both laws simultaneously. However, certain circumstances might allow these protections to run separately, potentially extending your total available leave . For instance, pregnancy-related leave under Pregnancy Disability Leave (PDL) doesn't overlap with CFRA, allowing you to use both consecutively.
What counts as retaliation under California law
Retaliation occurs when an employer takes adverse action against an employee specifically because they engaged in legally protected activity—such as requesting or taking FMLA/CFRA leave.
Common forms of FMLA retaliation include:
- Termination shortly after returning from leave
- Demotion or unfavorable job reassignment
- Reduction in hours or pay
- Negative performance evaluations that didn't exist before leave
- Exclusion from meetings or workplace activities
- Creating intolerable working conditions forcing resignation
For example, reducing an employee's hours from 40 to 20 per week after they use FMLA leave constitutes illegal retaliation . Similarly, if your employer disciplines you, denies promotions, or gives unwarranted negative reviews following your return from protected leave, this may signal retaliatory intent .
California courts pay particularly close attention to timing—adverse actions occurring shortly after protected leave raise serious red flags about potential retaliation, especially if the employer's justification seems vague or inconsistent . Remember that both state and federal laws explicitly prohibit employers from interfering with, restraining, or denying the exercise of any FMLA or CFRA right .
Why Timing and Documentation Are Critical
When fighting FMLA retaliation claims, success often hinges on two critical factors: timing and documentation. These elements can mean the difference between winning your case and having it dismissed before trial. Understanding how courts evaluate these factors gives you a strategic advantage in protecting your rights.
Why courts focus on the moment of termination
Courts pay close attention to the timing between your FMLA leave request or usage and any adverse employment action. This "temporal proximity" often serves as compelling evidence of retaliatory intent. In fact, terminating an employee during or immediately after FMLA leave raises immediate suspicion, even when employers claim the decision was unrelated .
Judges rarely accept coincidence as an explanation when termination follows shortly after protected leave . Instead, courts examine whether the employer finalized termination decisions before your leave began or waited an appropriate time after your return. Without clear documentation showing the decision predated your leave request, employers face significant legal challenges .
The timing analysis extends beyond just termination dates. Courts also scrutinize whether your employer:
- Addressed performance issues before your leave request
- Documented concerns contemporaneously or only after you requested leave
- Showed a pattern of treating you differently after your FMLA request
To successfully dismiss a retaliation case without trial, employers must prove the termination would have happened regardless of your FMLA leave—something nearly impossible without thorough documentation predating your request .
How doctor's notes can make or break your case
Medical certification forms the foundation of your FMLA protection. For employees, properly completed certification provides security, ensuring you can take necessary time off without losing your job . Furthermore, it serves as strong evidence that your leave was legitimate and legally protected.
The FMLA allows employers to request medical certification supporting your need for leave, but this process has strict rules. You must generally provide certification within 15 calendar days after your employer's request . Failing to return certification in this timeframe allows employers to deny FMLA protection for absences following the 15-day period .
Nevertheless, if you make "diligent, good faith efforts" but still miss the deadline, you're entitled to additional time, and your employer cannot deny protection during this period . This protection becomes vital if your employer attempts to use certification technicalities to justify termination.
Remember that a certification must be "complete and sufficient" . Employers must notify you in writing if your certification is incomplete or insufficient and specify what additional information is needed. You then have seven calendar days to provide the missing information in most circumstances .
Examples of harmful phrases in medical documentation
Vague or ambiguous language in your medical documentation gives employers potential justification for adverse actions. Phrases like "TBD" (to be determined) or "unknown" regarding your return date create particular vulnerability .
Notably, submitting various medical records or doctor's notes instead of the specific certification form requested by your employer can leave you unprotected. In one significant case, an employee provided medical records but never returned the requested certification form despite multiple reminders—consequently, the court ruled the employer wasn't required to provide written notice of deficiencies or time to cure them .
Be wary of handwritten notes with unclear timeframes or insufficient details about your condition's severity. While employers cannot request your specific diagnosis under CFRA , they need enough information to determine your eligibility for protected leave.
For maximum protection, ensure your medical documentation clearly states:
- The condition renders you unable to perform job functions
- Expected duration of incapacity
- Anticipated return date (avoid open-ended timeframes)
- Any work restrictions upon return
Maintaining copies of all medical certifications and employer communications creates a crucial paper trail should disputes arise later .
What Employers Cannot Do During or After FMLA Leave
Many employers mistakenly believe their obligations end once an employee's 12-week FMLA leave expires. Yet California law provides additional protections beyond federal requirements that significantly limit what employers can do when employees need medical leave. Understanding these restrictions helps you recognize potential FMLA retaliation.
Terminate without a foreseeable return-to-work date
Simply exhausting your FMLA leave doesn't give employers automatic permission to terminate your employment. Even after your 12 weeks of protected leave ends, employers must consider additional accommodations under California's Fair Employment and Housing Act (FEHA). Essentially, FEHA requirements exist alongside FMLA/CFRA rather than being replaced by them.
While employers often assume they can immediately terminate employees who can't return after FMLA exhaustion, this approach frequently violates California law. Open-ended leaves with no foreseeable return date may not require accommodation, primarily because courts recognize that indefinite leave can constitute undue hardship. Yet employers must still engage in good faith assessment before making termination decisions.
Ignore the interactive process
California law mandates that employers initiate a timely, good faith interactive process whenever an employee might need accommodation – including when FMLA leave ends but the employee still needs assistance. This process requires:
- Discussing potential accommodations directly with the employee
- Identifying job-related limitations and essential functions
- Considering employee preferences for accommodation
- Evaluating all available options before making decisions
Failure to engage in this interactive process constitutes an independent violation of California law, completely separate from any discrimination claim.
Claim undue hardship without evidence
Employers cannot simply declare that accommodating an employee would cause "undue hardship." Unlike FMLA (which doesn't permit undue hardship defenses), FEHA allows this exception – but the threshold is intentionally high.
Merely stating accommodation is "too expensive" or "inconvenient" is insufficient. Courts require concrete evidence demonstrating why accommodations would create "significant difficulty or expense." General conclusions without specific operational or financial analysis almost invariably fail legal scrutiny. Larger organizations face heightened expectations due to their presumed greater capacity to provide accommodations.
Change your job role without valid reason
Upon returning from FMLA leave, you're entitled to reinstatement in the same or an equivalent position. "Equivalent" means nearly identical in:
- Duties and responsibilities
- Pay rate and structure
- Benefits and perks
- Work location and schedule
- Advancement opportunities
Moving you from management to non-supervisory roles, changing shifts, or reducing responsibilities constitutes potential retaliation. While exceptions exist for legitimate business reorganizations unrelated to your leave, employers bear the burden of proving such changes would have occurred regardless of your FMLA usage.
How Employers Use Vague Notes to Justify Termination
Vague medical documentation creates significant liability for employees seeking FMLA protection. Even with legitimate health conditions, unclear paperwork often gives employers powerful legal advantages in termination disputes.
Common employer defenses in court
Courts consistently side with employers who demonstrate an "honest belief" that an employee misused FMLA leave—even if that belief later proves incorrect. Moreover, this "honest belief" defense provides a legitimate, nondiscriminatory reason for termination that's extremely difficult to overcome. Employers need not prove they were absolutely correct in their determination; they must simply show they acted in good faith based on available information.
Inconsistent documentation presents a particular vulnerability. In one notable case, an employee was terminated after his employer discovered conflicting paperwork that reasonably gave rise to an "honest belief" of leave misuse. Accordingly, the court sided with the employer despite the employee's valid medical condition.
Why 'TBD' and 'unknown' hurt your case
Certain phrases in medical notes consistently undermine otherwise strong retaliation claims. Courts view these terms not as medically prudent flexibility but as legal liabilities:
- "Return date unknown"
- "TBD" (to be determined)
- "When treatment is complete"
- "Until further notice"
- "Reassess at next appointment"
From a legal perspective, these phrases signal no foreseeable return-to-work date and provide no way to evaluate whether continued leave will enable your return. Courts primarily focus on what your employer knew at termination—not what happened afterward—making these vague terms particularly damaging.
How to avoid giving employers legal cover
One-liner notes extending leave without additional details create serious legal exposure. Effective medical documentation should clearly establish:
- Whether you're receiving treatment
- The likely effectiveness of treatment
- Medical likelihood that leave will enable your return
Without these elements, even sympathetic judges may dismiss your case. Remember that courts expect more than terse, vague notes saying only "medical leave until [date]." Instead, ensure your documentation establishes specific timelines coupled with clear indications that additional leave will facilitate your eventual return to work.
How to Protect Your Rights Before and After Leave
Protecting yourself against FMLA retaliation requires proactive steps both before requesting leave and throughout your absence from work. Taking these preventative measures creates a solid foundation for defending your rights if problems arise.
Work with your doctor to create clear documentation
Your medical certification forms the backbone of FMLA protection. Collaborate with qualified healthcare providers to complete all certification fields thoroughly, especially regarding frequency and duration of leave. Avoid vague phrases like "TBD" or "unknown" when discussing your return date. Instead, request specific timeframes with medical justification for any extensions.
Keep a timeline of all communications
Maintain detailed records of every interaction with your employer regarding your leave. Save emails, texts, and written notices in a dedicated folder. Additionally, take notes during phone conversations or in-person meetings, including dates, participants, and key points discussed.
Respond to employer requests promptly
The law permits employers to request certification within 15 calendar days after you request leave. Should your employer find your certification incomplete, you have seven calendar days to provide missing information. Meeting these deadlines prevents employers from denying FMLA protections on technicalities.
Document your intent to return to work
Explicitly communicate your plans to return throughout your leave period. Prior to exhausting your FMLA entitlement, provide clear written statements about your anticipated return date and any accommodations you might need.
Conclusion
FMLA retaliation remains a significant threat for California employees despite robust legal protections. Throughout this guide, we've seen how employers might disguise retaliatory actions following protected medical leave. Understanding the interplay between federal FMLA and California's stronger CFRA protections certainly gives you a powerful advantage when facing health challenges that require time away from work.
Clear documentation stands as your strongest defense against potential retaliation. Vague medical notes with phrases like "TBD" or "unknown" can unintentionally provide employers legal justification for adverse actions. Therefore, partnering with your healthcare provider to create specific, detailed certification forms must become your priority before requesting leave.
Timing also plays a crucial role in retaliation cases. Courts pay particular attention to the sequence of events surrounding your leave request and any subsequent negative employment actions. Additionally, maintaining comprehensive records of all communications with your employer creates essential evidence should disputes arise later.
California law offers significant protections beyond those available under federal FMLA alone. Employers cannot simply terminate employees after their 12 weeks expire without first engaging in a good faith interactive process to explore possible accommodations. They must provide concrete evidence of undue hardship rather than making unsubstantiated claims about operational difficulties.
Armed with knowledge about your rights and prepared with proper documentation, you stand much better positioned to prevent and address potential retaliation. Though taking medical leave shouldn't put your career at risk, the reality requires vigilance and preparation. Your health concerns deserve attention without fear of workplace consequences, and California law firmly supports this fundamental right.
Call Setyan Law at (213)-618-3655 to schedule a free consultation.
