California Government Code Section 12940(m) makes it unlawful for an employer to fail to make “reasonable accommodations” for the known physical or mental disability of an employee.

A medical leave of absence is a form of an accommodation, and as stated by the Court of Appeals in Jenson vs Wells Fargo, (2000) 85 Cal App 4^th 245, 263, “holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation”.  See also Hanson vs. Lucky Stores, Inc, (1999) 74 Cal App. 4^th 215.

Under, California law there is no maximum number of months or years that an employee is allowed to take for a medical leave to be protected.   Therefore, whether or not the length of a particular leave of absence is “reasonable” is a factual issue that is determined on a case by case basis.

In order to defeat a failure to accommodate claim, an employer must prove that the proposed accommodation would impose an “undue hardship” on the employer’s business.  “Undue hardship” has been defined as an accommodation that “would be significantly difficult or expensive to make.”  In determining whether a particular leave request would create an “undue hardship”, factors such as the size of the employer and financial resources of the employer are considered.   See Judicial Council of California Civil Jury Instruction 2425-Disability Discrimination-Affirmative Defense-Undue Hardship. 

An employer is not obligated to hold a disabled employee’s job open forever.      However, as stated in Jenson vs Wells Fargo, (supra), a leave of absence is a reasonable accommodation “where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.”  Id.

Further, a leave of absence and leave extensions are reasonable accommodations under the Americans With Disabilities Act (“ADA”), and a termination based upon an absence that was a requested accommodation is a violation of the ADA. Criado vs IBM Co. 145 F3d 437, 443-445.   In fact, the ADA can require an employer to grant leave in excess of what their company leave policy allows. Garcia v. Lederle Parenterals, Inc. 212 F3d 638, 646.

Therefore, a company leave policy that sets forth maximum leave amounts, (ie. 6 months or 1 year) is arguably illegal on its face.

If you feel that your Employer is not complying with the above laws and/or is not accommodating your physical or mental disability, please call our office for a free consultation.