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  • All too often, when employees with disabilities request medical leave, employers fail to properly respond to the requests. They may deny medical leaves to which employees are entitled, may impose requirements that are not lawful, or may fail to honor employees’ reinstatement rights. Over the next few weeks, this series will explore the top ten ways that employers deny employees their medical leave rights.

    #1 – Failing to Consider Leave as a Reasonable Accommodation

    When employees with disabilities request medical leaves, employers sometimes make the mistake of considering their obligations only under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. section 2601 et seq., and California Family Rights Act (“CFRA”), Government Code section 12945.2. Employers may wrongly believe that if employees do not meet the eligibility criteria under the FMLA and CFRA, or if they have already exhausted their FMLA/CFRA leave, they are simply ineligible for job-protected medical leave.

    The law is clear, however, that leave can be a reasonable accommodation under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. section 12101, and the Fair Employment and Housing Act (“FEHA”), Government Code section 12940 et seq. (See, e.g., Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 [holding that “a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties”]; Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243 [“Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer.”]; EEOC, Employer-Provided Leave and the Americans with Disabilities Act (“EEOC Leave Guidance”) (May 9, 2016); 29 C.F.R. Pt. 1630 App. § 1630.2(o) [identifying as possible reasonable accommodations “permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment”].) Note that the FEHA looks to the ADA to provide a “floor of protection,” with the FEHA providing equal or greater protections to employees. (Cal. Gov’t Code § 12926.1.) For that reason, federal authorities are helpful in exploring the minimum protections afforded to employees.

    ADA/FEHA leave often covers situations where FMLA and CFRA leave do not apply…

  • worker denied disability leave

    This is another post in my series on mistakes employers make. In this post, I discuss employer leave policies–specifically those that impose maximum leave amounts and “no fault” attendance policies–and why they can end up unlawfully denying employees their rights. While this post covers obligations under both the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA), I will refer to the ADA only with the understanding that it sets the “floor of protection” under the FEHA (and the FEHA, in fact, affords workers greater protections).

    An Inflexible Maximum Leave Policy Violates the ADA

    Many employers have “maximum leave” policies, under which employees are automatically terminated. . . .