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 (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. The FMLA and CFRA both have eligibility requirements. Under the FMLA, 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) 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. (29 C.F.R. §§ 825.104; 825.110; 825.600.)

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 employer has fewer than 50—but at least five (for FEHA)—employees;
  • 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 basis to deny leave requested as a reasonable accommodation is because it would be an undue hardship for the employer. (42 U.S.C. § 12112(b)(5)(A).) As the FMLA regulations confirm, “the ADA allows an indeterminate amount of leave, barring undue hardship, as a reasonable accommodation.” (29 C.F.R. § 825.702(b).) Thus, a qualified individual with a disability must be allowed additional leave time beyond the twelve weeks guaranteed under the FMLA/CFRA (and, in the case of pregnancy, the four months under California’s Pregnancy Disability Leave Law (“PDLL”), Cal. Gov’t Code section 12945) so long as that additional leave time would not constitute an undue hardship on the employer.

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This series was adapted from Ramit Mizrahi’s article in The Advocate Magazine, “Ten Ways That Employers Deny Employees Their Medical Leave Rights (June 2017).

To read about the next way that employers deny employees their leave rights, click here: #2 -Failing to Consider All Leave Rights Together.

For more on leave as a reasonable accommodation, click here.

For more on the undue hardship standard, click here.

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Top 10 Ways Employers Violate Medical Leave Rights: #1 – Failing to Consider Leave As A Reasonable Accommodation was last modified: August 11th, 2017 by Ramit Mizrahi
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