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EXTENDED MEDICAL LEAVE: HOW TO PRESERVE YOUR HEALTH WITHOUT RISKING YOUR JOB WHEN FMLA IS NOT ENOUGH.

EXTENDED MEDICAL LEAVE: HOW TO PRESERVE YOUR HEALTH WITHOUT RISKING YOUR JOB WHEN FMLA IS NOT ENOUGH.

You have used up all of your 12 weeks of FMLA leave. You have no vacation time left and no more sick days, but due to a mental or physical condition, you are not yet well enough to return to work. You need more time to treat or recuperate from your physical or mental condition, but you do not want to lose your job. What to do? Many employers in California make the mistake of overlooking the various leave laws that protect employees who need time off work as a result of a physical or mental disability. They think that by giving an employee the 12 weeks under the Family Medical Leave Act (“FMLA”), they have complied with their legal obligations. Not so. If an employee is unable to return to work due to a serious illness and the duration of the leave exceeds 12 weeks the employee’s job may still be protected under California’s Fair Employment and Housing Act’s disability leave provisions. Government Code § 12940(a) imposes liability on an employer for discriminating against an employee because of his physical or mental disability. In addition, Government Code § 12940(m) provides that it is also an unlawful employment practice, for an employer “to fail to make reasonable accommodation for the known physical or mental disability or an applicant or employee.” Granting unpaid leaves of absence may constitute reasonable accommodation to “disabled” employees. “Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.” Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263. “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.” Nunes v. Wal-Mart Stores, Inc. (1999) 164 F.3d 1243, 1247. But how much time can you take? While it is recognized that a leave of absence can be a reasonable accommodation for an employee’s disability, an employer is not required to provide an indefinite leave of absence as a reasonable accommodation.” (2 Cal. Code of Regulations §7293.9 (c)). California’s disability leave provisions do not specify how much leave is necessary. The question turns on how much leave would be reasonable under the circumstances, which is a case by case analysis. There is no “one size fits all” approach to be taken in determining the length of a leave of absence accommodation. As such, employers who automatically terminate employees after the employee has exhausted his or her FMLA leave period (12 weeks), regardless of the particular circumstances, may be found liable for violations of the Americans With Disabilities Act and/or California’s Fair Employment and Housing Act. The EEOC guidance is clear that an employer may not simply follow its own fixed-leave policies and terminate an employee with a disability who needs leave beyond the set period, without considering whether additional leave could be provided without undue hardship. In light of this, if you need more time than the 12 weeks guaranteed under the FMLA, or if you do not qualify for FMLA leave, ask for a medical leave as a reasonable accommodation to your physical or mental disability making sure to communicate with your employer regarding the estimated length of your leave and a probable return to work date. If you need more information on this topic, or would like a free consultation on any workplace rights issue, please contact the California Labor and Employment lawyers at Feldman Browne Olivares, APC. You can reach us at (800)350-0454 or (310)552-7812.