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Leave for People with Disabilities: The “Americans with Disabilities Act” may provide leave rights greater than that provided for in the FMLA and CFRA.

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 website.

Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.

If you feel something wrong is going on, call an attorney such as myself. You will only benefit by getting advice from someone who’s experienced with the ADA laws in California. Call 866-278-2385