Maximum Leave Policies: Per Se Violations of the ADA and FEHA?

It often happens like this: Your doctor provides you a note, to be given to your employer, stating you need time off work to recover from a disability. Thereafter, you regularly visit your doctor regarding your condition, and he or she repeatedly extends your leave of absence finding that you’re not yet fit to return to work. You’ve now been out of work for a few weeks or months – and for purposes of this example we’ll say you’ve been out of work for ten (10) weeks – when you receive a letter from your employer explaining that your twelve (12) weeks of leave is about to exhaust and that, in accordance with company policy, if you are not able to return to work before the twelve (12) week mark, you will be fired.

Is such a policy legal? Generally, no. A maximum leave or “no fault” attendance policy, like the one described above, violates the Americans with Disabilities Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”) because it disregards the employer’s obligation to engage in a “good faith interactive process” and fails to consider whether an extended leave of absence would be an undue hardship on the employer.

The ADA and FEHA require employers to make reasonable accommodations for the known or perceived disabilities of an employee, unless doing so would be an undue hardship on the employer. Such reasonable accommodations may include providing an employee with an unpaid leave of absence for treatment or recovery. For instance, in Jensen v. Wells Fargo Bank, the court found that “[h]olding 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.” 85 Cal.App.4th 245, 263 (2000). The law does not specify a minimum amount of time off work an employer must provide an employee as a reasonable accommodation; however, the law does require employers engage in an interactive process (i.e. talk to you) “to determine effective reasonable accommodations” for an employee’s disability. Thus, if you ask your employer for extra time off work to recover from a disability, like in the example above, and your employer denies you additional leave solely because of the company’s maximum leave policy, then your employer has likely violated the ADA and FEHA.

The Equal Employment Opportunity Commission (“EEOC”), who is responsible for enforcing the ADA, has obtained substantial settlements against employers with inflexible leave policies. See EEOC v. Sears Roebuck ($6.2 million consent decree for employees who had been fired under Sears’ 12-month leave policy); EEOC v. Verizon ($20 million consent decree for employees who had been disciplined or terminated under a no-fault attendance and leave policy).  In doing so, the EEOC has explained that “[e]mployers may not apply a no-fault leave policy (under which the employees are automatically terminated after they have been on leave for a specified period of time) to an employee with a disability who, as a reasonable accommodation, needs additional leave beyond the employer’s set period; rather, the employer must provide the employee with additional leave unless (i) granting additional leave would cause undue hardship, or (ii) there is another effective accommodation that would enable the employee to perform the essential functions of his or her position.” See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the American with Disabilities Act (10/17/02), Q & A 17 (available on the EEOC’s Website), www.eeoc.gov/policy/docs/accommodation.html).

What this means is that your employer may not fire you under an inflexible maximum leave policy, without first engaging in the interactive process and considering whether they could provide you with an extended leave of absence as an accommodation.

If you have been fired, or fear that you may soon be fired, pursuant to a maximum leave policy, call us today at 626-365-1599. We will evaluate the specific facts of your case and talk you through your legal remedies.