Many disabled employees and their employers are under the mistaken belief that once their FMLA leave is exhausted, they have no right to any other leave and have to come back to work despite their health condition and/or disability. It is not uncommon for California employers to discipline, suspend or even fire employees who are unable to return to work after their FMLA/CFRA leaves expires. This however is often unlawful as it may violate the employer's obligation to engage in interactive process and provide reasonable accommodations to a disabled employee. 

Numerous California cases have held that finite leave may be a reasonable accommodation under the Fair Employment and Housing Act, provided that upon expiration of leave the employee will be able to perform his duties, and finite leave might be all that's necessary to accommodate the employee's medical condition. 

Unfortunately, many employee are not aware of this right and feel both hopeless and helpless after their FMLA leave expires. Extended leave under FEHA is of major help in such situations. 

One common issue that arises under the above circumstances is whether the leave was finite or too indefinite, because the employers have no duty to accommodate an employee or keep his position open while he is on disability of he is expected to be on leave indefinitely.
 
 

Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical condition is governed by FMLA, just like leave for any other "serious health condition" of an employee. However, the CFRA (California Family Rights Act) expressly excludes an employee's incapacity due to pregnancy, childbirth, or related medical condition. 

Pregnancy disability leaves under the PDLL run concurrently with leave taken under the FMLA.
Thus, if an employee takes 12 weeks of leave due to her pregnancy, childbirth or related medical condition and the employer gives the proper FMLA notices, the employee will have exhausted her annual entitlement to FMLA leave and will have exhausted 12 weeks of the fourt month PDLL leave entitlement. 

Since CFRA doesn't run concurrently with PDLL, CFRA can be taken after PDLL leave. Following a pregnancy disability leave, an employee will still have the right to take a CFRA leave of up to 12 weeks "for reason of the birth of her child, if the child has been born by this date" assuming, of course, that the CFRA leave rights were not exhausted during that year prior to the pregnancy disability leave. 

If the maximum amount of both types of leave is taken, the maximum total leave entitlement will be 4 months plus 12 workweeks (4 months of pregnancy disability leave under the PDLL, of which 12 weeks may also be FMLA leave plus 12 workweeks of CFRA leave). 

An employee is only entitled to use the maximum amount of pregnancy disability leave if she was actually disabled by pregnancy for four months, and is entitled to CFRA leave only if she meets CFRA eligibiltiy rules and has not previously used the CFRA leave for another purpose.

 
 

Many employees suffering from a disability or a particular medical condition qualify for FMLA leave, under which they are entitled to be placed on unpaid leave for up to 12 weeks in a year, assuming that certain FMLA conditions are satisfied. 

However, very few employees are aware that upon expiration of FMLA leave, they might be entitled to additional time off as a reasonable accommodation to their disability / medical condition. Under California law, an employer must engage with an employee in a good faith interactive process to find out if the employee may be provided reasonable accommodation to his or her disability / medical condition at workplace. One of those reasonable accommodations can be extending the employee's leave beyond FMLA leave, unless this extended leave would impose undue hardship on the employer's business. An employer who fails to engage in this interactive process to investigate whether reasonable accommodations can be provided to the disabled / sick employee may be liable for disability discrimination, failure to accommodation and other violations of employment laws in California. 

If you believe that your employer did not fulfill it's obligation under California law and you would like to discuss your situation at workplace, contact San Francisco employment attorney Arkady Itkin for a free, no-obligation consultation.

 
 

The federal Family and Medical Leave Act (FMLA) provides job security to an employee who is absent from work because of the employee's own serious health condition or to care for a specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee. 

Employees eligible for FMLA are entitled to 12 workweeks of leave in a 12-month "leave year." An employee may take FMLA leave for any of the following reasons: (1) the serious health condition that makes the employee unable to perform the essential functions of the position; (2) the serious health condition" of a spouse, child or parent; (3) the birth of a child or to care for such child; or (4) the placement of a child with the employee for adoption or foster care. 

Employers may require medical certification of the existence of a serious health condition. Further, FMLA leave is unpaid unless available paid time off is taken (e.g. vacation, paid sick time or paid personal time off) and/or unless disability beneftis are available. 

At the conclusion of an FMLA leave, the employee must be reinstated to the same or an equivalent job, unless he or she is a "key employee" who is given appropriate notification. An employer must maintain health plan benefits for an employee on FMLA leave on the same basis as if the employee were actively employed; and all benefits, including those that lapsed during the leave, must be restored immediately upon the employee's return to work.