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Americans with
Disabilities Act or ADA ::
The ADA May Provide Greater Leave Rights
Leave for
People with Disabilities: The ADA may provide leave rights
greater than that provided for in the FMLA and CFRA.
By
Matthew A. Kaufman, Esq.
Some
employers believe that if an employee cannot be at work,
there is no duty to accommodate that employee, particularly
if leave under FMLA/CFRA has been exhausted. In my
practice, I have come across human resource professionals
who believe that once FMLA or CFRA leave has
been exhausted, then the employee can be terminated despite
the absence being caused by a bona fide
disability.
This is wrong and can lead to liability under California and
federal law. The Americans with Disabilities Act (ADA)
and California's Fair Employment and Housing Act
(FEHA) can provide leave rights that are separate
from those provided by the Family and Medical Leave Act
(FMLA) and the California Family Rights Act
(CFRA). Under these laws, medical leave may be
required as a reasonable accommodation even if FMLA
and CFRA leave has been used up.
In such cases, the employee must show he or she likely will
be able to return to the job at the end of leave. The
employer is not required to provide an indefinite leave of
absence (but in some cases leave with no fixed date of
return may be a reasonable accommodation). An open-ended
leave may render an employee unqualified for the job and
this can be considered an "undue hardship" for the
employer.
These
concepts are summed up in the following
quotes:
"Holding a job open for
a disabled employee who needs time to recuperate or heal
is in itself a form of reasonable accommodation and may
be all that is required where it appears likely that the
employee will be able to return to an existing position
at some time in the foreseeable future." ‚Jensen
v. Wells Fargo Bank (2000) 85 CA4th 245, 263.
"Reasonable accommodation does not require the employer
to wait indefinitely for an employee's medical condition
to be corrected." ‚Hanson v. Lucky Stores,
Inc.(1999) 74 CA4th 215, 226-227.
Even
if an employee can only provide an approximate date of
return to work, that does not provide an employer with a
sure-fire defense. The U.S. Equal Employment Opportunity
Commission (EEOC) states the following about
employees who cannot predict when they will return to
work:
"Treatment and
recuperation do not always permit exact timetables. Thus,
an employer cannot claim undue hardship solely because an
employee can provide only an approximate date of return.
In such situations, or in situations in which a return
date must be postponed because of unforeseen medical
developments, employees should stay in regular
communication with their employers to inform them of
their progress and discuss, if necessary, the need for
continued leave beyond what might have been granted
originally."
Even
if the employee cannot provide a fixed date of return, the
employer still must prove that leave would be an undue
hardship. Showing undue hardship may be difficult in many
circumstances. A complete discussion of undue hardship is
beyond this web page, but a good source is the EEOC's -
Enforcement
Guidance:
Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities
Act.
Harris &
Kaufman Can Help With ADA Leave
Harris & Kaufman is a
California law firm that's dedicated to representing
employees in disputes against their employers to do with
leave in California. Our employment attorneys are
experienced and have had numerous trials, arbitrations, and
appeals and have litigated on behalf of thousands of
employees.
Harris & Kaufman has represented workers in state and
federal court and in administrative proceedings before the
California Labor Commissioner. Determined and aggressive,
our cases include individual disputes and
class
action lawsuits.
We are aggressive and experienced lawyers and can help
enforce your rights under California state law or state
regulations. Based in Sherman Oaks, California we serve
greater Los Angeles, Orange County, Ventura County and have
cases statewide.
To
email William E. Harris about a claim you may have
Click
Here
Americans
with Disabilities Act & ADA in California Page
Summary: California employment attorney Matthew A.
Kaufman offers an article on the Americans with Disabilities
Act or ADA. The ADA my provide leave rights greater than
provider for in the FMLA and CFRA.
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