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Extended Leaves of Absence as a “Reasonable Accommodation”

Columnist for SCVBJ

Posted: June 21, 2013 2:00 a.m.
Updated: June 21, 2013 2:00 a.m.
 

Wading through the proverbial “alphabet soup” of leave of absence requirements can be a challenge for even the most savvy business owner.

Even when all of the applicable regulations pertaining to leaves of absence are properly identified, applying them can be challenging, as well.

Some leaves of absence run concurrently with one another, while others must run consecutively.

An employer can do everything right by allowing an employee to exhaust all possible leave time required under the various statutes and err on the side of caution in running those different leaves consecutively.

Unfortunately, there may still be a further obligation to provide additional time away from work if that additional leave could be defined as a “reasonable accommodation” of a recognized disability under the Fair Employment and Housing Act (FEHA).

Specifically under the FEHA, an employer is required to enter into the “interactive process” with any employee who has a qualifying disability to determine what, if any, “reasonable accommodation” can be made to allow the employee to continue with his/her employment duties.

The courts have specifically held that leaves of absence — even in excess of all statutorily-mandated leaves — may be a “reasonable accommodation” under the FEHA. And an employer’s failure to provide such accommodations could result in a claim for disability discrimination.

Earlier this year, a California Court of Appeal determined that an employee who had exhausted all of her maximum pregnancy disability leave (four months), her Family Medical Leave (12 weeks) and three additional weeks of her accrued vacation — all prior to the date she delivered her child — may have been entitled to even more time away from work.

The woman’s employer, after allowing her to be away from her duties for the statutory maximum time, did not take steps to “enter into the interactive process” to determine if an additional period of leave could possibly be deemed a “reasonable accommodation.”

Rather, the employer terminated the employee, indicating that she had exhausted her maximum leave of absence under both state and federal law, and that the business could no longer hold her position open.

The court held that the employer failed to satisfy its obligations under the FEHA to meet with the pregnant employee in order to determine what could be done to accommodate her beyond the maximum leave prescribed by the law.

The court also ruled that the time limitations associated with the individual leave of absence statutes do not supplant or replace the employer’s obligation under the FEHA to accommodate a disability.

On a more favorable note for business owners, the court did indicate that an employer is not required to allow an employee to take a leave of absence for an indefinite period or take leave that would result in an “undue hardship” to the business.

However, it is apparent that an employer should, at the very minimum, engage in a preliminary “interactive process” to determine if an additional, finite leave period is necessary to accommodate the employee’s disability.

If the employee is unable to establish that she will return by a certain date and that she will be able to perform all of her essential job functions — with or without a reasonable accommodation other than an additional leave — the risk to the employer of a successful discrimination suit following her termination is greatly reduced.

As always, employers should consult with competent legal counsel when determining which leaves apply, how the leave is calculated and whether additional leave can and should be provided under certain circumstances.

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