When Your FMLA Leave Expires in California

posted by Arkady Itkin  |  Jan 3, 2013 11:48 AM [EST]  |  applies to California

One of the more common mistakes that employers make with regard to employees' medical leave and disability rights under ADA and FEHA is assuming that just because an employee's FMLA or CFRA leave has expired, an employee is no entitled to further leave.  

Consider an employee who is placed on FMLA due to industrial injury or due to serious illness, such as cancer treatment. He applies and gets approved for FMLA after upon expiration of FMLA (12 weeks), the employee goes to the doctor who tells him that the employee needs additional time to recover and is not ready to return to work, until say 2 or 3 months from that day. The employee promptly notifies his employer of this needed extension and provides the medical documentation from his doctor approving that leave extension. However, the employer denies the request, and states that the employee must return to work upon expiration of FMLA or he will be terminated.  

Under the above circumstances, this most likely will be considered a wrongful termination and disability discrimination. This is because upon expiration of FMLA, the employer who knows of an employee's disability must consider whether extending medical leave would be a reasonable accommodation that the employer could provide. Failure to consider this is a violation in itself, and terminating an employee instead of extending his leave and allowing him to return to work with or without restrictions upon expiration of that leave would be against the law. 

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