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

#6 – Instituting A Maximum Leave Policy

Many employers have “maximum leave” policies, under which employees are automatically terminated after they have been on leave for a certain period of time. These can violate the Americans with Disabilities Act of 1990 (“ADA”) and the Fair Employment and Housing Act (“FEHA”). Simply put: a maximum-leave policy does not satisfy an employer’s obligation to engage in the interactive process and provide a reasonable accommodation to an employee who needs additional leave. (See EEOC, Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016).) This is the case even if the amount of leave time the employer permits is seemingly generous (for example, permitting employees on short-term disability to be out on leave for a year).

The ADA and FEHA require that an employer assess each disability accommodation request on a case-by-case basis. This means that it is unlawful to simply apply an inflexible maximum leave policy to an employee with a disability who needs more leave. Instead, the employer must provide additional leave unless granting the time off would cause an undue hardship or there is another effective accommodation that will allow that employee to work.

What this means to a worker who needs additional disability-related leave time: If the employer has a maximum leave policy, it must amend the policy or make an exception to allow the employee who needs additional leave time beyond the maximum amount to take that time so long as doing so would not create an undue hardship. In addition, the employer must, throughout the leave process, communicate with the employees to determine whether other accommodations are needed that would enable the employee to return to work. This is particularly important in situations where separate leave administration related to the Family and Medical Leave Act, California Family Rights Act, workers compensation, or disability benefits from ADA/FEHA administration, as they often fail to have adequate information flow, and are more likely to not meet their accommodation obligations.

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To read about the next way that employers deny employees their leave rights, click here: #7 – Instituting a “No Fault” Attendance Policy.

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).

More on maximum leave policies can be found here.

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