This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.

#10 – Failing To Return Employees To Vacant Positions For Which They Are Qualified

Even if a disabled employee is unable to return to her own position, an employer’s obligations do not end there. If there is a “comparable” or “lower graded” vacant position for which the employee is qualified and capable of performing with or without accommodation, the employer must offer it to her. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 377 [citing Cal. Code Regs., tit. 2, § 11068, subd. (d)(1), (2).]) Note that the Fair Employment and Housing Act (“FEHA”) does not require the employer to promote the employee or create a new position for the employee to a greater extent than it would create a new position for any employee, regardless of disability. (Ibid. [citing Cal. Code Regs., tit. 2, § 11068, subd. (d)(4)].)

An employer must offer a disabled employee the vacant position without requiring the employee to compete against other employees. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 265 [“[T]o the extent Wells Fargo rejected Jensen for positions for which she was qualified because it had applicants who were more qualified or had seniority, it overlooks that when reassignment of an existing employee is the issue, the disabled employee is entitled to preferential consideration.”]). The onus is on the employer to search its positions and to make the offer (rather than simply telling the employee that she is free to search for vacant positions).

Even if there are currently no vacant positions, but openings are anticipated in the near future, the employer should extend the employee’s leave until that time. (See Nadaf-Rahrov v. Neiman Marcus Grp., Inc. (2008) 166 Cal.App.4th 952, 968 [where employee was terminated after her doctor placed her on a medical leave and extended it seven times, for a total of approximately nine months of leave, and indicated that at the end she would need to return to a different position, summary judgment was improper because “it may have been a reasonable accommodation for Neiman Marcus to extend Nadaf–Rahrov’s leave of absence for a limited period of time until a position became available that Nadaf–Rahrov could perform, particularly if Neiman Marcus could have anticipated the future opening”].) . ..

This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.

#9 – Forcing Employees To Be Out On Leave Instead Of Offering A Different Reasonable Accommodation

An employer may not force an employee to go out or remain on leave if the employee can work with a reasonable accommodation. (Cal.Code Regs., tit. 2, § 11068, subd. (c).) Yet, employers frequently force employees to remain on unpaid leaves of absence because they incorrectly assume that the employees cannot perform their essential job functions or because they are not willing to offer reasonable accommodations that would allow the employees to work.

In Wallace v. County of Stanislaus, a deputy sheriff was placed on an unpaid medical leave of absence because of his employer’s incorrect assessment that he could not safely perform his duties even with reasonable accommodation. ((2016) 245 Cal.App.4th 109, 134, reh’g denied (Mar. 24, 2016), review denied (May 11, 2016).) The court of appeal held that the employer must face the consequences of its error:

[T]he Legislature intended to “provide protection when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity.” (§ 12926.1, subd. (d), italics added.) In light of this clear expression of legislative intent, County cannot rely on its mistaken beliefs about Wallace’s physical condition and safety to claim its reasons were legitimate under California law. . . .

This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.

#8 – Misidentifying Medical Leave As “Indefinite”

There is only one bright-line rule when it comes to leave as a reasonable accommodation: an employer is not required to provide an employee with “indefinite” leave. (See, e.g., Cal. Code Regs., tit. 2, § 11068, subd. (c).) The rationale behind this rule is that leave as a reasonable accommodation is meant to allow an employee to recuperate and return to work. If the employee cannot say whether and when he can return to work, an employer cannot be required to hold that employee’s position.

Sometimes employers deem a leave request indefinite because the return-to-work date is not precise or may be subject to reevaluation. However, an employee seeking leave need not show that the leave is certain or even likely to be successful in proving that it is a reasonable accommodation; the employee need only show it would plausibly enable the employee to return and perform his job. (Humphrey v. Mem’l Hosps. Ass’n (9th Cir. 2001) 239 F.3d 1128, 1136.)

The EEOC has made the following point: “In certain situations, an employee may be able to provide only an approximate date of return. 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.” (EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002), at Q&A 44.)

Thus, an employer may not treat as indefinite leave one with an approximate return date or where the situation changes and the original return date has been revised. (See Garcia-Ayala v. Lederle Parenterals, Inc. (1st Cir. 2000) 212 F.3d 638, 648-50 [discussing difference between indefinite leave and one with approximate or revised return dates].)

This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.

#7 – Instituting a “No Fault” Attendance Policy

Also subject to challenge are “no fault” attendance policies in which employees are subject to discipline for reaching a certain number of absences, regardless of the cause of the absences. Such policies adversely affect people with disabilities, and can evidence a failure to accommodate if they do not make exceptions for individuals whose “chargeable absences” were caused by their disabilities. In 2011, Verizon entered into a settlement with the EEOC in which it agreed to pay $20 million to settle a nationwide class disability discrimination lawsuit that challenged its no-fault attendance policy. (See Verizon to Pay $20 Million to Settle Nationwide EEOC Disability Suit (July 6, 2011).)