Like many management-side employment lawyers, I field a lot of questions from clients wondering what to do with employees on leaves of absence.  Questions like:

The Family Medical Leave Act and California Family Rights Act both require employers to grant employees 12 weeks of unpaid leave.  So if the employee can’t come back after 12 weeks, I can replace them, right? 

Wrong.  At least the part about being able to replace them.  In addition to FMLA and CFRA, there are requirements under the Americans With Disabilities Act and California Fair Employment and Housing Act that you provide reasonable accommodations.  Under the FEHA (specifically, Cal. Gov’t Code sec. 12926(n)(2)), it is unlawful “for an employer…to fail to make reasonable accommodation for the known physical or mental disability of an…employee.”  Since an unpaid leave of absence is a form of reasonable accommodation, you have to provide it unless you can show that doing so is an undue hardship.

So I have to provide unpaid leave.  I’ve done that.  The employee asked for a month off and we said "OK."  Than he asked for a month extension, then another month, then another month and we granted all those requests.  Now he wants another two months.  Now we can replace him, right?

Not necessarily.  You still have to show an undue hardship.  And keep in mind, undue hardship doesn’t mean expense to the employer.  These laws expect the employer to shoulder the costs and burdens of accommodating disabled employees.  If this is someone whose job can be covered by a temp or by restructuring existing employees, you won’t have much luck showing that a further unpaid leave is so onerous that you can terminate.

But I thought I only had to provide a reasonable accommodation if it enabled the employee to perform the essential functions of the job.  If this person can’t work at all for another two months, I don’t have to provide an accommodation, right?

Wrong.  The decision that a leave of absence could be a form of accommodation kind of swallowed up the "essential functions" requirement.  The manager asks, "What type of accommodation would enable you to perform the essential functions of this job?" and the employee responds, "Letting me stay home for a few months should do the trick."  But there are limits.  The leave must be finite and it must be likely that the employee, at the end of the leave, could perform his or her duties.

What does that mean?

It means, first, that you don’t have to grant an indefinite leave of absence.  Since most employees don’t ask for indefinite leaves of absence, that doesn’t help much.  They ask for finite leaves and, often after that, for a series of extensions.  Second, you don’t have to grant leave to an employee who isn’t likely to be able to perform the essential functions after the leave is over.  That doesn’t help much either because, in most cases, you won’t know what the employee’s condition will be at the end.

Am I really supposed to run a business according to these rules?


Don’t you think this mock question and answer format is — I don’t know – hokey?

Yes.  I’ll stop now.