Fired or “Position Eliminated” While on CFRA Leave in California: What Your Employer Must Prove

If you were on California Family Rights Act (CFRA) leave and your employer says your position was eliminated, the law starts from your right to come back to the same or a comparable job. To refuse on that ground, the employer must prove you would have lost the job even if you had kept working, and being replaced or having your duties reshuffled to cover your absence does not count. A genuine layoff unrelated to your leave can end the right to return, so the real question is whether the elimination was real and would have reached you anyway.

CFRA leave covers your own serious health condition, a family member’s, bonding with a new child, or a qualifying military exigency in your family. Under Government Code section 12945.2, it applies at employers with five or more employees to workers with more than 12 months of service and at least 1,250 hours in the prior 12 months.

CFRA leave comes with a job guarantee

Under section 12945.2(a), CFRA leave is not treated as granted unless the employer gives “a guarantee of employment in the same or a comparable position” when the leave ends.

The Civil Rights Council’s CFRA regulation, California Code of Regulations, title 2, section 11089, makes refusing reinstatement after granted leave an unlawful employment practice unless a listed defense applies. It says you are entitled to reinstatement “even if the employee has been replaced or the employee’s position has been restructured to accommodate the employee’s absence.” A comparable job must be “virtually identical” in pay, benefits, shift, schedule, location and working conditions. The employer must tell you about the guarantee when it grants leave and put it in writing if you ask.

A real layoff is a defense, and the employer must prove it

The regulation’s main defense is that employment would have ended anyway. You have “no greater right to reinstatement” than if you had worked continuously through the leave. But the employer “has the burden of proving, by a preponderance of the evidence,” that you would not otherwise have been employed on the requested return date. That burden “shall not be satisfied” if you were replaced or your position was restructured to cover your absence. If you are laid off during the leave and employment ends, the employer’s duties to continue the leave, keep group health benefits and reinstate you stop at the layoff, unless a union contract or other obligation continues them. A cut shift or reduced overtime need not be restored either.

The California Civil Rights Department (CRD) leave guide agrees: reinstatement applies “except in limited circumstances unrelated to your leave (such as layoffs).” In our reading, the label matters less than what happened. A position that disappears on paper while someone else does the same work looks like replacement.

When “elimination” is really retaliation or interference

Even if some jobs were cut, the decision to include you cannot turn on your leave. Section 12945.2(k) makes it unlawful to discharge or discriminate against someone because they exercised CFRA rights, and section 12945.2(q) bars interfering with or denying those rights. The regulation on retaliation and interference lists, as interference, “Terminating an employee when it anticipates an otherwise eligible employee will be asking for a CFRA-qualifying leave in the future.” It also says employers “cannot use the taking of CFRA leave as a negative factor in employment actions,” and leave cannot be counted against you under an attendance policy.

In our reading, that matters for layoff selection: if ranking by attendance or recent output counted your leave against you, the selection itself may have used leave as a negative factor.

Facts that test a “position eliminated” explanation

In our reading, these facts usually decide whether the employer can carry its burden:

• When the decision was made. A restructuring planned before you requested leave reads differently from one that appeared after you left.
• Who else was affected. One eliminated position, yours, is different from a department-wide cut using written criteria.
• Who does your work now. A coworker, temp or new hire doing the same duties, or a reposted job under a new title, points toward replacement.
• What reasons were given, and when. Compare the first explanation with later ones.

The return date also matters. Under section 11089(c), if you and the employer agreed on a return date, failing to reinstate you by that date establishes a refusal to reinstate. If the date changed, failing to reinstate you within two business days, where feasible, after you say you are ready to return establishes a refusal.

What to keep and when to act

Keep the leave approval, any written reinstatement guarantee, the agreed return date, messages about your job during leave, the termination notice, any severance offer, and anything showing who took over your duties.

Read any severance release before signing: the regulation bars waiving future CFRA rights but allows releasing claims based on past conduct. Our guide to California severance agreements explains how to read a release, and our PDL and CFRA bonding leave guide covers how bonding leave fits with pregnancy leave.

A CFRA claim is filed first with CRD. Its complaint process page says that in employment cases you must submit an intake form “within three years of the date you were last harmed.” If you want to go straight to court instead of using CRD’s investigation, you must first obtain an immediate right-to-sue notice from CRD.