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Here’s a scenario that I come across regularly: A worker with health issues goes out on a medical leave under the Family and Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA). Her employer tells her that once her FMLA/CFRA leave is exhausted, she will be terminated if she cannot return to work immediately. The worker is unable to return to work at the required date and is fired.

Big mistake. Here’s why: Even if the worker’s leave is no longer covered by the FMLA/CFRA (or was not covered in the first place), other protections may apply, including those created by the Americans with Disabilities Act of 1990 (ADA) and California’s Fair Employment and Housing Act (FEHA).

I’ve written quite a few posts about the FMLA, the CFRA, and the Pregnancy Disability Leave Law (PDLL). FMLA and CFRA both provide eligible employees with up to 12 weeks per year of job-protected leave for their own serious medical conditions, while PDLL provides for up to four months of job-protected leave for employees disabled by pregnancy, child birth, or related conditions. These laws create bright-line rules regarding the amount of time an employee must be provided. But employers are getting it wrong by thinking that their responsibilities to disabled workers end when the workers have exhausted their time under FMLA/CFRA/PDLL.

Leave is a Recognized Reasonable Accommodation

The law is clear that leave can be a reasonable accommodation under the ADA and FEHA. The Equal Employment Opportunity Commission has spoken extensively about the topic. Leave has also been explicitly identified as a reasonable accommodation under the ADA in nearly every circuit and is a recognized FEHA accommodation in California. [*]

ADA/FEHA Leave Covers Situations Where FMLA/CFRA Leave Does Not Apply

The FMLA and CFRA both have eligibility requirements. Under CFRA, an employee must: (1) have been employed by a covered employer for at least 12 months; (2) have had at least 1,250 hours of service during the 12-month period immediately before the leave started; and (3) work for an employer with five or more employees. Under FMLA, the first two requirements are the same, and the employee must also be employed at a worksite where the employer employs 50 or more employees within 75 miles or at a public agency, public school board, or elementary or secondary school. (CFRA used to have a similar requirement, but was expanded in 2020 to cover small employers.)

The ADA and FEHA have no such requirements. Instead, a qualified employee with a disability may be entitled to leave as a reasonable accommodation even if:

• The employee has not worked at the company for twelve months;
• The employee has not worked at the company for the requisite 1,250 hours; or
• The employee has already exhausted twelve weeks of FMLA/CFRA leave.

The only reason to deny leave requested as an accommodation is because it would be an undue hardship for the employer. This means that a qualified individual with a disability must be allowed additional leave time beyond the twelve weeks permitted under the FMLA/CFRA (and the four months under PDLL in the case of pregnancy) so long as that additional leave time would not constitute an undue hardship on the employer. The FMLA Regulations (at 29 C.F.R. § 825.702(b)) make clear that “the ADA allows an indeterminate amount of leave, barring undue hardship, as a reasonable accommodation.”

The ADA, FEHA , FMLA, and CFRA Operate Independently

Each of the leave laws must each be analyzed separately to determine what an employee’s rights are. When an employee requests time off for a reason related or even possibly related to a disability, the employer must determine the employee’s rights under all of the relevant laws. The request should be deemed one for a reasonable accommodation under the ADA and FEHA, not just a request for FMLA/CFRA leave. This means that an employer should initiate an interactive process with the employee to determine his or her limitations and identify potential reasonable accommodations.

Given that the ADA, FEHA, FMLA, and CFRA operate independently of each other, “[a]n employer must therefore provide leave under whichever statutory provision provides the greater rights to employees.” (FMLA Regs., 29 C.F.R. § 825.702(a)). For example, although the FMLA permits the employer to place an employee returning from a covered leave in an “equivalent” position (29 C.F.R. § 825.215), the ADA/FEHA require that the person returning from leave be returned to her original position. An employee covered by these statutes would need to be returned to her original position following a return from a medical leave, absent the employer demonstrating undue hardship.

Here are some examples from the FMLA Regulations, found at 29 C.F.R. § 825.702(c), that illustrate the interplay between the statutes:

(1) A reasonable accommodation under the ADA might be accomplished by providing an individual with a disability with a part-time job with no health benefits, assuming the employer did not ordinarily provide health insurance for part-time employees. However, FMLA would permit an employee to work a reduced leave schedule until the equivalent of 12 workweeks of leave were used, with group health benefits maintained during this period. FMLA permits an employer to temporarily transfer an employee who is taking leave intermittently or on a reduced leave schedule for planned medical treatment to an alternative position, whereas the ADA allows an accommodation of reassignment to an equivalent, vacant position only if the employee cannot perform the essential functions of the employee’s present position and an accommodation is not possible in the employee’s present position, or an accommodation in the employee’s present position would cause an undue hardship. . . .

(2) A qualified individual with a disability who is also an “eligible employee” entitled to FMLA leave requests 10 weeks of medical leave as a reasonable accommodation, which the employer grants because it is not an undue hardship. The employer advises the employee that the 10 weeks of leave is also being designated as FMLA leave and will count towards the employee’s FMLA leave entitlement. This designation does not prevent the parties from also treating the leave as a reasonable accommodation and reinstating the employee into the same job, as required by the ADA, rather than an equivalent position under FMLA, if that is the greater right available to the employee. At the same time, the employee would be entitled under FMLA to have the employer maintain group health plan coverage during the leave, as that requirement provides the greater right to the employee.

(3) If the same employee needed to work part-time (a reduced leave schedule) after returning to his or her same job, the employee would still be entitled under FMLA to have group health plan coverage maintained for the remainder of the two-week equivalent of FMLA leave entitlement, notwithstanding an employer policy that part-time employees do not receive health insurance. This employee would be entitled under the ADA to reasonable accommodations to enable the employee to perform the essential functions of the part-time position. In addition, because the employee is working a part-time schedule as a reasonable accommodation, the FMLA’s provision for temporary assignment to a different alternative position would not apply. Once the employee has exhausted his or her remaining FMLA leave entitlement while working the reduced (part-time) schedule, if the employee is a qualified individual with a disability, and if the employee is unable to return to the same full-time position at that time, the employee might continue to work part-time as a reasonable accommodation, barring undue hardship; the employee would then be entitled to only those employment benefits ordinarily provided by the employer to part-time employees.

It is the Employer’s Obligation to Demonstrate Specifically That a Request Would Create an Undue Hardship

An employee requesting a reasonable accommodation need only show that the requested accommodation is “reasonable on its face, i.e., ordinarily or in the run of cases.” Once that is accomplished, the employer must either grant the request, or “show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” As noted above, the ADA/FEHA does not identify any amount of leave time that would automatically be deemed an undue hardship. Numerous cases have found that even very long leaves could be reasonable—even leaves in excess of a year.

Conclusion

Employees with disabilities who are running out of FMLA and CFRA leave should nevertheless consider and be considered for further leave time as a reasonable accommodation under the ADA and FEHA. Employers who fail to provide such a reasonable accommodation and instead terminate workers can be found liable under the FEHA and for wrongful termination in violation of public policy. Employees stand to recover lost wages and other economic damages, compensation for emotional distress, pain, suffering, and humiliation, attorneys’ fees and costs, and even punitive damages under egregious circumstances. Failure to provide—or even consider—leave as a reasonable accommodation is an employer mistake that is all too common, and it costs hard-working workers their jobs.

[*] For citations and a more detailed analysis of this topic, please refer to my publication:
“Leave As A Reasonable Accommodation Under The Americans With Disabilities Act.” Labor & Employment Law Forum 3, no. 1 (2013): 29-47.