After the Conclusion of Family Leave, Alternate Entitlements for Leave Might Be Applicable

Evmark Business Solutions

Employee on CFRA Leave Requesting Extension: Can We Terminate Employment?

We currently have an employee who is on California Family Rights Act (CFRA) leave and is set to exhaust her leave in one week. She has recently requested an extension of leave for one month, but since she will no longer be protected under CFRA, we are considering terminating her employment. However, there are potential issues with this decision.

CFRA and FMLA provide up to 12 weeks of unpaid leave for eligible employees with a serious health condition. When an employee has exhausted their CFRA/FMLA leave and requests additional leave due to an ongoing medical condition, the employer may have an obligation under the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) to provide additional unpaid leave as a reasonable accommodation.

Both the ADA and FEHA prohibit discrimination against qualified individuals with disabilities and require employers to reasonably accommodate them, unless it would cause undue hardship. A person is considered disabled if they have a physical or mental impairment that limits one or more major life activities. However, not all conditions covered by CFRA/FMLA may qualify as a disability under the ADA.

In this case, the employee’s request for additional leave may be considered a reasonable accommodation under the ADA/FEHA, as long as it does not cause undue hardship for the employer. The first step in evaluating this request is to engage in a timely and good-faith interactive process, which involves communication between the employee and the employer. The employer should document their efforts to determine if additional leave is reasonable.

Unlike CFRA/FMLA, there is no specific amount of leave required under ADA/FEHA as an accommodation. The amount of leave must be determined on a case-by-case basis. The employer may also request medical documentation to confirm the employee’s disability and the need for additional leave.

If the employer can show that granting the request for additional leave would cause undue hardship, they may deny the accommodation. The EEOC defines undue hardship as an action that would be significantly difficult or expensive for the employer.

In conclusion, terminating an employee who has exhausted their protected leave and requested additional leave may be considered discriminatory under the ADA/FEHA. Employers should carefully consider their obligations under these laws and engage in an interactive process with the employee before making any decisions. 

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