Do I Have to Let an Employee Take a Medical Leave of Absence?

By: Laura C. Hess

You receive a doctor's note stating that one of your employees is receiving medical treatment, cannot work, and is expected to be unable to work for several months. Do you have to hold the employee's job open for him?

The federal Family Medical Leave Act ("FMLA"), and its California counterpart, the California Family Rights Act ("CFRA"), require an employer with at least 50 full time and part time employees to hold the employee's job open up to 12 work weeks, if the employee has worked for the company for at least 12 months. If CFRA leave is for the employee's own serious health condition, the employee may elect or the employer may require the employee to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave.

Even if the employee does not qualify for leave under the FMLA or CFRA, an employer may still be required to let an employee take a medical leave of absence. This is also true if the employee needs to take an extended medical leave of absence past the 12 week guarantee under FMLA or CFRA.

California's Fair Employment and Housing Act ("FEHA") requires employers to make reasonable accommodations for their employees' disabilities and medical conditions, so long as providing the accommodation does not cause the employer undue hardship. Gov. Code § 12940(m). The obligation to provide reasonable accommodation is an affirmative duty. 2 C.C.R. § 7293.9(a).

"Disability" is broadly construed to include any physical or mental condition which makes performance of a major life activity difficult. Gov. Code § 12926.1(j)(1)(B); 2 CCR§ 7293.6(d). "Working" is considered a major life activity. Gov. Code § 12926.1(c).

If the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer's leave plan, may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer. 2 C.C.R. § 7293.9(c).

However, employers are not required to allow employees to take indefinite leaves of absence, where the employee does not know if and when he will ever be able to return to work. Id.

The court looks at several factors in deciding whether it would be an undue hardship for an employer to allow an employee to take a leave of absence as a reasonable accommodation. They include, for instance, the nature and cost of the leave, the company's ability to pay that cost, the impact on operations, and the number of employees. 2 C.C.R. § 7293.6(r). For instance, if the company is a small, family owned business with only four employees, the company may not have the financial or staffing resources available to allow an employee to take an extended leave.

If the employer can show that the cost of allowing the employee to take leave is an undue hardship, (for instance, the cost of providing the employee with benefits while he is on leave,) the employer is still required to permit the leave of absence if funding is available from another source, e.g., a state vocational rehabilitation agency, or if federal, state or local tax deductions or tax credits are available to offset the cost. In the absence of such funding, the employer should give the employee the option of paying the employer's portion of the cost of continuing his benefits while he is on leave. 29 C.F.R. pt. 1630 app. §§ 1630.2(p).

If the employer fires the employee because it claims it would be an undue hardship to allow the employee to take a medical leave of absence, the employer risks being sued for disability discrimination, wrongful termination in violation of public policy, and failure to accommodate disability. These claims all carry the risk that the employer may have to pay the plaintiff's attorney's fees and costs if the employee wins his case.

Laura C. Hess is a Partner with Kring & Chung, LLP's Irvine, CA office. She can be contacted at (949) 261-7700 or lhess@kringandchung.com