Twelve weeks is not enough
When it comes to disability discrimination, many employers in California just don’t understand the law. Under the California Family Rights Act (CFRA), qualifying employees are entitled to up to 12 weeks of leave for a serious health condition either for themselves or certain family members.
Too often, however, employers in California do not recognize that leave for a serious health condition under CFRA or the federal Family and Medical Leave Act (FMLA) does not place a limit or a ceiling on leave as an accommodation for a disability. In California, a disability can be any condition that limits a major life activity. A bad back is such a condition, for example. There are many others, including high blood pressure, hospitalization for heart attack or serious orthopedic injury, or mental conditions such as depression.
If an employee is granted 12 weeks of leave under his or her California Family Rights Act policy at work, that does not mean that the same employee is not entitled to additional leave, as an accommodation for his or her disability, namely a bad back.
Right to the point, a serious health condition may also be a disability within the meaning of California law. When that occurs, there is no 12-week limit on the amount of leave that may be available as an accommodation for the disability. The 12 weeks may be a starting point.
Often, the employee will be put out on medical leave for several weeks, and the period of leave will be extended by his or her treating physician beyond 12 weeks. At this point, the employer will terminate the employee because his or her leave will have persisted beyond the 12-week limit in the family medical leave policy. The employer simply sends a letter to the employee stating that his or her family medical leave has been exhausted, and that the employee is therefore terminated.
Interactive dialogue requirement
The decision to terminate the employee while still on medical leave is in most instances a violation of the law (if the employee is disabled within the meaning of California law). Because the employee with the bad back (in our example) is disabled within the meaning of California law, she’s entitled to an interactive dialogue about her requirements for accommodation, including additional leave as a possible accommodation.
It is important to note that medical leave from work constitutes one form of disability accommodation. When the employer fails to contact the employee to have this dialogue, the employer violates the law. Talk to an experienced and knowledgeable California disability accommodations attorney.
An interactive dialogue under the circumstances might disclose that the employee is capable of returning to part-time work, a restructured job position, or within a few short weeks with no restrictions at all. However, when the employer simply terminates the employee, it has never taken steps to find out this information.
What steps must an employer take to accommodate an employee with a disability?
An employer must take steps to accommodate an employee with a disability when the employee is capable of performing the essential functions of the job and the accommodation will not cause an undue hardship to the employer. When the employer simply employs a bright line rule like 12 weeks, to determine that an employee should return from leave or be fired, it has failed to engage in an individuated undue hardship analysis. And its actions are frequently invalid.
Some employers will take a wait-and-see attitude before they terminate the employee who has gone out on a medical leave. If the employee has been out on a leave for disability, or for pregnancy disability, the employer will sometimes replace the employee while the employee is still out on leave, on the assumption that the employee will not return. When the employee returns after the leave has been concluded, the surprised employer will invent a reason to terminate the employee (e.g., restructuring, downsizing, recently invented job performance issues).
Again, this is often a mistake, because it gives rise to a cause of action for retaliation for taking the medically protected leave. The retaliation action may be brought under the Fair Employment and Housing Act, or the California Family Rights Act, or the Pregnancy Disability Leave Act, depending on the facts and circumstances involved.
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