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info@olivareslaw.com (310) 706-4061California employees who need a medical leave or who are disabled and need a reasonable accommodation (including a leave of absence) have significant legal protections. Different leave rights and different employer obligations apply depending on the various leave laws, and employers often get it wrong and trample on employee rights. Attorneys at Olivares Law, APC have 25 years of experience handling medical leave and disability cases and can help you navigate through the maze of multiple leave laws.
Effective January 1, 2021, private employers of 5 or more employees within the United States are covered by CFRA. CFRA also applies to the California state and local governments as employers. The requirement that the employer has at least 50 employees within 75 miles of the employee’s worksite was eliminated effective January 1, 2021.
Covered Reasons for Leave:
Eligible employees may take up to 12 weeks of CFRA leave for the following reasons:
Eligible Employees:
To be eligible for CFRA employees must meet 2 requirements: (1) the employee must have worked for the covered employer for more than 12 months and (2) The employee must have worked at least 1,250 hours in the 12 months prior to their leave.
Your Job Is Protected During CFRA Leave:
Employees who take CFRA leave are entitled to reinstatement to the same or virtually identical position following their use of the leave. This is true even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.
The federal government enacted the Family and Medical Leave Act of 1993 to guarantee medical leave to eligible employees for a qualifying reason and to ensure job protection at the conclusion of that leave. The state enacted the California Family Rights Act, which provides the same guarantees. However, there are significant differences that you may want to be aware of if you need to take an extended absence from work. Here are only a few of the various notable differences:
The California Fair Employment and Housing Act requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship. Reasonable accommodation can include, but is not limited to, the following:
As described by the EEOC, the underlying “purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.”
Employers must initiate an “interactive process” when an applicant or employee requests reasonable accommodations, or when the employer becomes aware of the possible need for an accommodation. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation.
Employers are required to engage in “a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations,” and failure to do so is considered an independent violation of state law. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. The process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation.
A Job Protected Leave of Absence Is a Form of Reasonable Accommodation
Some employees think they cannot ever be terminated while on a disability leave. While a disabled employee who is on leave has significant legal protections, there are important implications to be aware of if the employee is on an indefinite leave.
Employees with disabilities may need a leave of absence for medical treatment (including therapy), to recover from symptoms associated with the disability, or due to flare ups or manifestations of the disability (such as with arthritis). As explained by the EEOC, leave qualifies as a reasonable accommodation if it enables an employee to return to work following the period of leave. The employer must consider providing an unpaid leave of absence to an employee with a disability who requests it, even if the employer does not provide leave benefits and even if the employee is not eligible for leave under any other company leave policy (i.e., the employee is not eligible for FMLA or CFRA leave). Furthermore, the employer must provide medical leave as a reasonable accommodation even if the employee has already exhausted all other available leaves of absence. Leave must be granted unless the leave would cause the employer undue hardship.
An extended leave of absence may be a reasonable accommodation provided the employee is able to return to work after the leave and the leave is not of indefinite duration. The EEOC has stated that “indefinite leave—meaning that an employee cannot say whether or when she will be able to return to work at all—will constitute an undue burden.” Similarly, numerous courts have held that an employee is not entitled to leave as a reasonable accommodation if the duration is unknown or indefinite.
However, there are times when leaves of six months or even over a year have been deemed by Courts to be reasonable. The analysis is fact specific and depends on the nature of the job, the job duties, the size and type of employer, among other things.
What is Undue Hardship?
An employer does not have to provide a reasonable accommodation that would cause an “undue hardship” to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. The determination of undue hardship is fact specific. According to the EEOC Enforcement Guidelines it is based on several factors, including:
Maximum leave policies (sometimes referred to as “no fault” leave policies) are workplace policies that limits the amount of leave employees can take, regardless of the reason for the need for leave, culminating in termination when employees cannot return to work before the leave period ends. Maximum leave policies take many different forms. A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both extended and intermittent leave. Some maximum leave policies have caps much higher than 12 weeks, such as 6 months or even 12 months. Others, particularly those not covered by the FMLA, set lower overall caps. Employers also frequently implement policies that limit unplanned absences. For example, a policy might permit employees to have no more than five unplanned absences during a 12-month period, after which they will be subject to progressive discipline or termination.
These policies hinder an employer’s obligation to engage in an interactive process to determine what, if any, reasonable accommodation would be effective (including additional leave). The ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation. Employers may have to grant leave beyond any amount of maximum leave stated in their policy as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.
A “100-percent healed” policy refers to a practice or procedure that mandates that an employee be released to work by his physician without any restrictions before he may return to work. Employers violate the ADA by requiring employees with disabilities to be 100% healed before returning to work (e.g. no medical restrictions). For example, if an employee is on medical leave for a surgery to address a disability and the employee’s physician releases her to work with a 20 pound lifting restriction, the employer cannot refuse to allow the employee to return to work with the lifting restriction if the employee’s essential functions do not require lifting 20 pounds. To do so would violate the ADA.
The EEOC issued Guidance addressing this very issue in 2016 and made clear that an employer will violate the ADA if it requires an employee with a disability to have no medical restrictions — that is, be “100%” healed or recovered — if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship. See consent decree in EEOC v. Brookdale Senior Living Communities, Inc. (D. Colo. No. 14-cv-02643-KMT) (resolved August 17, 2015). EEOC alleged that the company refused an employee’s request to return to work after leave for fibromyalgia because she was unable to return to work without restrictions or accommodations. See also consent decree in EEOC v. Americold Logistics (W.D. Ky. No. 4:12-cv-47-JHM) (resolved June 14, 2013). In this case, the EEOC alleged that the employer refused to explore or to provide reasonable accommodation that would allow an employee with chronic lumbar back pain to return to work and instead fired the employee because she was not 100% healed. See also Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958 (7th Cir. 2014) (permitting an employer to require that an employee be 100% healed would negate the ADA’s requirement that an employer provide reasonable accommodation if it enables an employee to perform his job).
Call Olivares Law, APC for a free consultation and fact specific case analysis.