California's Family Rights Act (CFRA) and the Family Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, protected medical leave per year. The employee must be reinstated and cannot lose his or her job for taking this protected leave. Employers sometimes question whether they must hold the employee's job open if the employee takes more than 12 weeks of leave. The answer is that, even though the CFRA/FMLA allow up to 12 weeks of medical leave, the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) may provide protection for employees to take an extended leave as a reasonable accommodation for a qualified disability, even beyond the 12-week CFRA/FMLA leave.
Here's what the EEOC has to say about this:
Q: Does the FMLA's limit of 12 workweeks of leave in 12-month period mean that the ADA also limits employees to 12 weeks of leave per year?
A: No. The FMLA does not mean that more than 12 weeks of unpaid leave automatically imposes an undue hardship for purposes of the ADA. An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship on the operation of the employer's business. To evaluate whether additional leave would impose an undue hardship, the employer may consider the impact on its operations caused by the employee's initial 12-week absence, along with the undue hardship factors specified in the ADA. See 29 C.F.R. § 1630.2(p).
Thus, employers should consider whether the ADA or FEHA provide some additional protections to an employee whose leave exceeds 12 weeks.
- Reinstate employees who return from leave on or before the expiration of 12 weeks of leave to the same or comparable position. Comparable means similar pay, benefits, working conditions, status, duties, responsibility, and level of supervision.
- Reinstate the employee on the agreed upon date, or, if that date has changed, within two business days after the employee has notified you of his/her readiness to return.
- If the employee does not attempt to return until after 12 weeks of leave have expired, consider whether the employee is entitled to additional leave as a reasonable accommodation under the ADA or FEHA.
- Proceed with caution before denying reinstatement to an employee who has taken a protected leave.